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2003 DIGILAW 133 (GUJ)

STATE OF GUJARAT v. NANJIBHAI MADHABHAI

2003-03-06

RAVI R.TRIPATHI

body2003
RAVI R. TRIPATHI, J. ( 1 ) THE present petition is filed by the State of Gujarat, through the Secretary, Narmada and Water Resources Department, being aggrieved of the judgement and award dated 29th August, 1997 passed by the Labour Court, Surendranagar in Reference (LCS) No. 101 of 1992. The establishment had also filed restoration applications, being Miscellaneous Application Nos. 1 of 1998 to 9 of 1998, which were disposed of by an order dated 6th August, 1998. ( 2 ) MR. DIGANT P. Joshi, learned AGP, invited the attention of the Court to the reasons, starting from paragraph 7 of the judgement and award of the Labour Court. He submitted that perusal of paragraphs 7 and 8 will clearly show that the learned Judge has in terms recorded a finding to the effect that, "the respondents-workmen have not proved violation of either Section 25-F or Sections 25-G and 25-H". The learned Judge has also recorded that, "so far as the delay is concerned, no satisfactory explanation is put forward and, therefore, even the delay is not worth condoning". Surprisingly, at the fag end of the hearing, a purshis was given by the respondent-workman on which the learned Advocate representing the Government made an endorsement, "no Objection". The purshis was to the effect that, `if the respondent-workman is granted reinstatement without back-wages, he is willing to accept the same. The learned Judge passed the order under challenge on the plea that in view of the purshis given by one party, to which the other party has given no objection, the Court is bound to pass an order in terms of that purshis. ( 3 ) MR. DIGANT P. Joshi, learned AGP, submitted that the learned Judge has committed an error in passing the order on the basis of a purshis, on which the learned Advocate representing the Government had made an endorsement, "no objection". He submitted that in fact, the learned Advocate cannot be said to have any authority for such endorsement. Mr. Joshi is not able to point as to whether the Government has taken any action against the learned Advocate for having made an endorsement, "no objection", in a case where the respondent-workman was neither able to prove any of his rights nor was able to prove violation of the provisions of Sections-25 (F), 25 (G) or 25 (H ). Mr. Joshi is not able to point as to whether the Government has taken any action against the learned Advocate for having made an endorsement, "no objection", in a case where the respondent-workman was neither able to prove any of his rights nor was able to prove violation of the provisions of Sections-25 (F), 25 (G) or 25 (H ). Mr. Joshi submitted that in view of that the present judgement and award is required to be quashed and set aside. ( 4 ) MRS. D. T. SHAH, learned Advocate for the respondent-workman, submitted that the petition was filed on 25th February, 1999 and this Court was pleased to issue `rule on 1st March, 1999 and grant stay of the impugned judgement and award. Mrs. Shah submitted that thereafter, Civil Application No. 7832 of 2000 was filed in the matter seeking compliance of Section-17 (B), which was decided by an oral order dated 8th November, 2000, wherein a direction was given to the respondent to comply with the provisions of Section-17 (B) of the I. D. Act. ( 5 ) TAKING into consideration the glaring facts of the case, this Court finds no reason to insist for compliance of Section-17 (B) of the I. D. Act. The ground for not insisting for the compliance of the provisions of Section-17 (B) is that the award is apparently passed only on a concession made by the learned Advocate appearing for the Government before the Labour Court. In fact, in the body of the judgement and award, the learned Judge has recorded a categorical finding that the respondent-workman is not able to establish any of his rights and not only that, there is no breach of either Section-25 (F), Section-25 (G) or Section-25 (H ). In light of this, this Court is of the opinion that this is not a fit case to insist for compliance of provisions of Section-17 (B) of the I. D. Act because that will cause burden on the public exchequer. Section-17 (B) is placed on the statute book with a purpose that, `in cases where the litigation prolongs, more particularly, by one party, against whom there is a judgement and award, after full fledged adjudication of the issue involved, a relief is required to be given to the workman so that he is not left high and dry during the pendency of the appeal. Seeking compliance of Section 17 (B) in the case of this nature will result into grave miscarriage of justice and, therefore, this Court is of the opinion that it should not insist for compliance of Section-17 (B) of the I. D. Act in this case at this stage. ( 6 ) AT this juncture, Mrs. D. T. Shah, learned Advocate for the respondent-workman, submitted that it appears from the record that the respondent-workman did not produce any material before the learned Judge, may be, because he was not properly advised for the same or it was not readily available with him. She further submitted that the fact remains that this workman was working with the Department and not only that, the learned Judge has even recorded that during the pendency of the Reference, some of the workmen were found to have been discharging their duties and, therefore, the learned Judge has observed that, `in view of the fact that during the pendency of the Reference, they were discharging their duties", which makes the respondent-workmans date of termination incorrect. She submitted that it will be in the interest of justice if the Court remands the matter to the Labour Court permitting both the sides to lead the evidence. ( 7 ) MRS. D. T. SHAH, the learned Advocate, also submitted that under Section-17 (B) of the Act, the last drawn wages are to be paid to the workman and the same are, though due and payable to the respondent-workman, not paid. ( 8 ) MR. DIGANT P. Joshi, learned AGP, submitted that the Irrigation Department has asked for necessary instructions from Rajkot Office by a letter dated 31st August, 2001 with regard to the amount payable to the respondent-workman. ( 9 ) IN the facts and circumstances of the case, the judgement and award granting reinstatement is required to be quashed and set aside. The same is accordingly quashed and set aside. The matter is remanded to the Labour Court, Surendranagar for adjudication afresh. Taking into consideration that the matter is old enough, it is directed that the learned Judge shall give due priority to the matter and decide the same within one year from the date of receipt of this order. It is clarified that though the order dated 6th August, 1998 passed in Miscellaneous Application Nos. Taking into consideration that the matter is old enough, it is directed that the learned Judge shall give due priority to the matter and decide the same within one year from the date of receipt of this order. It is clarified that though the order dated 6th August, 1998 passed in Miscellaneous Application Nos. 1 of 1998 to 9 of 1998 is not specifically challenged before this Court, the same is also quashed and set aside. In view of the fact that the matter for payment of wages due and payable to the respondent-workman was under consideration since August-2001, which is not finalised, it is directed that the amount due and payable under Section-17 (B) of the I. D. Act or any other provision of the Act, shall be paid to the respondent-workman within six months from the date of receipt of this order. Mr. Digant P. Joshi, learned AGP, undertakes to communicate the order of this Court as expeditiously as possible to the authorities concerned. The petition is allowed in the aforesaid terms. Rule is made absolute to that extent only. No order as to costs. .