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2001 DIGILAW 759 (GUJ)

State of Gujarat v. Shankarbhai Kabhaibhai Parmar

2001-10-15

P.B.MAJMUDAR

body2001
ORDER : P.B. Majmudar, J. In the present petition, the Government has challenged the order of the Labour Court, in which there is an order of reinstatement in favour of the concerned workman. While admitting this matter, the following order was passed by this Court on 15.12.2000 :- "Since the matter has already been admitted, interim relief is required to be confirmed subject to compliance with the provisions of Section 17B of the ID Act. The petitioner herein is directed to comply with the said provisions from the date of the order of the Labour Court and also to continue to give benefit to the respondent during the pendency of this petition by way of paying him the last drawn salary. The respondent herein is directed to file necessary affidavit in consonance with the provisions of Section 17B of the I.D. Act. The matter is fixed for final hearing in the first week of April, 2001." Today, the matter is taken up for hearing for confirmation of the aforesaid ad interim relief. 2. It is not in dispute that the order of reinstatement and back wages is stayed by this Court while admitting this petition. Mr. Desai, learned AGP, however, submitted that before the Labour Court, none appeared on behalf of the petitioner-State and it is, therefore, an ex parte order. He also further submitted that the Forest Department is not an 'Industry' and, therefore, the Industrial Disputes Act is not applicable. Mr. Desai, therefore, submitted that this is not a case in which provisions of Section 17-B of the I.D. Act can be said to be applicable. He, therefore, prayed that absolute interim relief should be granted in favour of the petitioner. 3. However, in my view, once order of reinstatement is stayed by this Court, this Court has no option but to pass appropriate order as required by Section 17-B of the Act. Reference to the said provision is required to be made at this stage. He, therefore, prayed that absolute interim relief should be granted in favour of the petitioner. 3. However, in my view, once order of reinstatement is stayed by this Court, this Court has no option but to pass appropriate order as required by Section 17-B of the Act. Reference to the said provision is required to be made at this stage. Section 17-B provides as under :- "17-B. Payment of full wages to workman pending proceedings in higher courts.-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 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 by such workman had been filed to that effect in such Court : Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be." 4. Whether the Award of the Labour Court deserves to be set aside or not or whether the same is without jurisdiction or not, can be decided only at the time of final hearing and not at this stage. In view of the clear mandate of the aforesaid provisions of Section 17-B of the Act, the petitioner is bound to follow the said provision especially when reinstatement is stayed by this Court. 5. Mr. Shahani, learned counsel for the respondent, has relied upon the judgment of the Apex Court in Workmen of Hindustan Vegetable Oils Corporation Ltd. v. Hindustan Vegetable Oils Corporation Ltd. and Others, 2000-II, LLJ 792, for the proposition that the application under Section 17-B of the I.D. Act should be disposed of before principal writ petition. It has been held by the Honourable Supreme Court as under :- "2. It has been held by the Honourable Supreme Court as under :- "2. The order under challenge has been passed by a Division Bench of the High Court at Calcutta. Its operative portion states that the writ petition filed by the present appellants and their application under Section 17-B of the Industrial Disputes Act should be disposed of together, expeditiously. We are of the view that an application under Section 17-B should be disposed of before the principal petition and it should be disposed of most expeditiously. 3. We, therefore, set aside the order under challenge to the extent that it requires the disposal of the writ petition and the Section 17-B application together and we direct that the Section 17-B application should be disposed of with great promptitude and before disposal of the writ petition. 4. The Section 17-B application shall be listed before a learned single Judge of the Calcutta High Court expeditiously, and the parties may seek a fixed date of hearing. It shall be open to the parties to raise all contentions in support of and against the application. It shall also be open to the first respondent to rely upon the order of the B.I.F.R. that it states has been passed." 6. In view of what is stated above, therefore, the interim relief granted earlier is confirmed on the same terms on which it was granted earlier and the petitioner is directed to comply with the provisions of Section 17-B of the Act from the date of the order of the Labour Court and during the pendency of this petition, the Department should continue to comply with the same. The respondent workman has filed an affidavit, copy of which has been given to the learned AGP, stating that he is not gainfully employed. Since the first order is as back as of 15.12.2000, it is high time that the Department should comply with the said provision forthwith. 7. Mr. Desai, learned AGP, has also submitted that the concerned workman is doing some stray business/labour work. However, no material is placed on record to justify the say that the respondent-workman is in gainful employment except producing some revenue record, which is annexed with the petition, showing that the respondent is cultivating certain land. However, if the respondent is cultivating certain land, it cannot be said that he is in gainful employment in any manner. However, no material is placed on record to justify the say that the respondent-workman is in gainful employment except producing some revenue record, which is annexed with the petition, showing that the respondent is cultivating certain land. However, if the respondent is cultivating certain land, it cannot be said that he is in gainful employment in any manner. In this connection, Mr. Shahani relied on the Apex Court decision in Rajinder Kumar Kindra v. Delhi Administration through Secretary (Labour) and others, AIR 1984 SC 1805 , wherein the Supreme Court has also considered the concept of gainful employment at the time of considering the question about payment of back wages. In the aforesaid decision, the Honourable Supreme Court held as under :- "21. It was next contended on behalf of the appellant that reinstatement with full back wages be awarded to him. Mr. P.K. Jain, learned counsel for the employer countered urging that there is evidence to show that the appellant was gainfully employed since the termination of service and therefore he was not entitled to back wages. In support of this submission Mr. Jain pointed out that the appellant in his cross-examination has admitted that during his forced absence from employment since the date of termination of his service, he was maintaining his family by helping his father-in-law Tara Chand who owns a coal-depot, and that he and the members of his family lived with his father-in-law and that he had no alternative source of maintenance. If this is gainful employment, the employer can contend that the dismissed employee in order to keep his body and soul together had taken to begging and that would as well be a gainful employment. The gross perversity with which the employer had approached this case had left us stunned. If the employer after an utterly unsustainable termination order of service wants to deny back wages on the ground that the appellant and the members of his family were staying with the father-in-law of the appellant as there was no alternative source of maintenance and during this period appellant was helping his father-in-law Tara Chand who had a coal depot, it cannot be said that the appellant was gainfully employed. This was the only evidence in support of the submission that during his forced absence from service he was gainfully employed. This was the only evidence in support of the submission that during his forced absence from service he was gainfully employed. This cannot be said to be gainful employment so as to reject the claim for back wages. There is no evidence on the record to show that the appellant was gainfully employed during the period of his absence from service. Therefore, the appellant would be entitled to full back wages and all consequential benefits." In my view, it cannot be said, therefore, that the present workman is in gainful employment simply because he is cultivating certain land. In view of the aforesaid mandatory provision of Section 17-B of the Act, the same is required to be complied with by the petitioner. 8. It is required to be noted that in the decision reported in 2000 I CLR 563, the Delhi High Court, while considering the provisions of Section 17-B of the I.D. Act, came to the conclusion that the benefit of Section 17-B of the Act cannot be denied to a workman on the ground that he is running his own business and he is receiving profit from such business. It is stated that the provisions of Section 17-B of the Act would be attracted only in the case of employment under another employer and receiving adequate remuneration. 9. In my view, therefore, simply because the petitioner is having some agricultural land or is cultivating the land, is no ground for denying him benefit of Section 17-B of the Act, especially when the Government has failed to show that the respondent is in employment of any particular employer. 10. Mr. Desai, however, strongly argued that the petitioner has good prima facie case and that the order of the Labour Court is likely to be set aside at the time of final hearing. But simply because the petitioner may have good prima facie case, the same is no ground for denying the benefit of Section 17-B of the Act and in view of the clear-cut provision of the aforesaid section, no other view is possible except directing the petitioner to comply with the provisions of Section 17-B of the Act. But simply because the petitioner may have good prima facie case, the same is no ground for denying the benefit of Section 17-B of the Act and in view of the clear-cut provision of the aforesaid section, no other view is possible except directing the petitioner to comply with the provisions of Section 17-B of the Act. However, it is clarified that in case the Department so chooses, it will be open for the Department to reinstate the petitioner on his original post and in that case, it will not be obligatory on the part of the Department to comply with the said provisions of Section 17-B of the Act. 11. Subject to the aforesaid observations, ad interim relief granted earlier is confirmed. The matter is placed for final hearing on 6th November, 2001. Before the matter is taken up for final hearing, the petitioner Department is directed to comply with the provisions of Section 17-B of the I.D. Act. Ad Interim relief confirmed.