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Gujarat High Court · body

2007 DIGILAW 702 (GUJ)

M. J. Patel v. Tata Chemicals Ltd.

2007-10-23

S.R.BRAHMBHATT

body2007
Judgment S.R. Brahmbhatt, J.—The applicant herein-respondent in Special Civil Application No. 669 of 2007 has approached this Court for receiving last drawn wages as provided under Section 17(B) of the Industrial Disputes Act, 1947 (hereinafter referred to as the ‘ID Act’ for the sake of brevity) as the opponent in the present application-petitioner in Special Civil Application No. 669 of 2007 has challenged the award dated 06.12.2006 passed by the Labour Court, Jamnagar in Reference (LCJ) 372 of 1993 ordering reinstatement of the present applicant on his original post with 75% back-wages with cost of Rs. 5000/- on the ground that the action of the opponent company was found to be malafide by way of victimizing the workman and contrary to the principles of natural justice and without following the provisions of the ID Act. 2. This Court (Coram: R.M. Doshit, J.) vide order dated 09.01.2007 issued Rule and granted ad-interim reliefs in terms of Para 5(b) of the main matter. Para 5(b) is in respect of staying the operation, implementation and effecting of the award dated 06.12.2006 passed by the Labour Court, Jamnagar in reference (LCJ) 372 of 1993. The concerned workman-present applicant, therefore, preferred an application seeking direction to the petitioner company-present opponent for praying last drawn wages to the applicant pending the aforesaid petition. 3. Mr. R.P. Mankad, learned Advocate appearing for the applicant has submitted that the opponent company has failed in establishing by evidence that the applicant is employed in an establishment and has been receiving adequate remuneration so as to deny him the benefit of Section 17-B of the ID Act. Mr. Mankad has invited the attention of this Court to the averments made in the application as well as the averments made in the rejoinder and sur rejoinder and submitted that the allegation of the applicant receiving fees for conducting cases of some of the Union members of the opponent and even outsiders cannot be said to be sustainable merely on the ground of some affidavits which the opponent has obtained from some of the persons. 3.1. Mr. 3.1. Mr. Mankad has submitted that the applicant has made specific averment in the rejoinder that the applicant being the President of the Union of workmen was duty bound to conduct the cases before the Labour Court and the Industrial Tribunal and conducting cases on behalf of the fellow workers cannot be said to be either an employment of services rendered against remuneration. With regard to the allegation of enjoying free housing facility by the company, learned Counsel for the applicant has also submitted that the quarter allotted to him at the company’s township has been handed over to the company long back as the company had filed Civil Suit No. 62 of 1994 in the Court Civil Judge, (J.D). The quarter in question referred by the company is actually alloted to the recognised union of the workers i.e. M/s. Tata Chemicals Skilled Mazdoor Sangh and the same is used for the trade union activities as the officer of the trade union is maintained therein. With regard to the allegation of receiving rental income a specific denial is made in the rejoinder in Para 9. 3.2. Mr. Mankad has invited the attention of this Court to the averments made by the applicant in Para 11 of this rejoinder and submitted that the issue with regard to one Ganga Munja Hathiya was of the year 1999 and it is clearly denied that any amount was collected as alleged in the affidavit. In respect of the affidavit of one Shri Haji Moosa, the workman applicant has stated that the union has collected struggle fund that has been paid by the opponent company to the union by cheque as per settlement terms and the amount so received is still lying in the bank account of the union. It is stated that it was proposed by the applicant that the amount was to be invested in the FDR so that said workers’ interest could be property served. The complainant who was the executing member of the committee objected to it and, therefore, the amount is still lying in the State Bank of India account of the union. 3.3. With regard to the contention regarding malpractices it is stated that the applicant had not received any notice from the CLC. The pass book regarding the same is produced at Annexure ‘Z’. Mr. 3.3. With regard to the contention regarding malpractices it is stated that the applicant had not received any notice from the CLC. The pass book regarding the same is produced at Annexure ‘Z’. Mr. Mankad has also invited this Court’s attention to the averments made in the additional affidavit on behalf of the applicant wherein the applicant has dealt with and denied the allegations made in the affidavit in sur rejoinder on behalf of the opponent. He has further submitted that the affidavit of Sakinaben was absolutely false and got up one as the applicant never appeared for her nor did he collect any amount as fees even for the union as alleged in the affidavit and he had called upon the opponent company to prove the same. Mr. Mankad has also invited the attention of this Court to the statement which is voluntarily filed on behalf of the applicant with regard to the transactions on the shares and submitted that these transactions cannot be said to be trading in shares so as to term the applicant to be a man trading in shares. 4. He has relied upon a decision of this Court in the case of State of Gujarat vs. Shankarbhai K. Parmar reported in 2001 (3) GLH 431 for supporting his contention that the plea of the present applicant being not a workman cannot be subject matter of this application which is made for receiving the benefit under Section 17-B of the ID Act and, therefore, the said plea could be of no avail to the opponent. Mr. Mankad has relied upon the decision of this Court in the case of Bhanulal Khimjibai Solanki vs. Deputy Executive Engineer, reported in 2004 (3) GLH 375 and submitted that looking to the present facts and circumstances the applicant cannot be denied the last drawn wages. He has also relied upon an unreported decision in LPA No. 762/2003 between Ratnamani vs. Sunil Kumar decided on 15.03.2005 and also in the case of Dholka Nagar Palika vs. Dasrathbhai R. Rabari reported in 2005 JX (Guj) 329 and submitted that the application deserves to be allowed. 5. Mr. He has also relied upon an unreported decision in LPA No. 762/2003 between Ratnamani vs. Sunil Kumar decided on 15.03.2005 and also in the case of Dholka Nagar Palika vs. Dasrathbhai R. Rabari reported in 2005 JX (Guj) 329 and submitted that the application deserves to be allowed. 5. Mr. K.M. Patel, learned Advocate appearing for the opponent company has contended that the main matter i.e. Special Civil Application No. 669 of 2007 has been admitted and the main contention raised in the petition for challenging the award is that the present workman who is seeking direction for praying him the last drawn wages was not even a workman as defined under the ID Act and, therefore, merely pendency of this main petition may not be utilized by the applicant for receiving the benefit under Section 17-B of the ID Act. In alternative, Mr. Patel has invited the attention of this Court to the affidavit–in-reply, the sur-rejoinder and the supporting affidavits filed as Annexures thereto for resisting the claim of the applicant on account of the applicant being self employed and, therefore, disqualified from receiving the last drawn wages as envisaged under Section 17-B of the ID Act. 5.1. Mr. Patel has invited the attention of this Court to the averments made in the reply affidavit to the fact that the workman being a trade unionist is infact collecting fees for appearing on behalf of workers in various labour disputes and he is also occupying a quarter which is a rent free accommodation wherein he has not to incur even electricity charges as it is paid by the opponent company. Mr. Patel has fairly admitted before this Court that the quarter in question referred to in the petition is infact allotted to the Union under the settlement and it is not the quarter alloted to the workman and as such he is occupying the quarter as he is as officer bearer of the Union. It is ofcourse between the union and the office bearer as to how the quarter is to be put to use. Mr. It is ofcourse between the union and the office bearer as to how the quarter is to be put to use. Mr. Patel has heavily relied upon the affidavits filed by Shri Ganga Munja Hathiya, Pragji Velji Vashrambhai Parmar, Karsan Hadabhai, Sakinaben Khamiza & Dipak Bamrolia for supporting his submission that the concerned applicant was infact self employed and receiving sufficient or rather more than sufficient amount for meeting his day to day expenses and therefore he is disqualified from receiving the last drawn wages from the opponent company only because the award is under challenge at this stage by this Court. 5.2. Mr. Patel has further submitted that the applicant has a PAN No. and he is also trading in shares and it generates sizeable income which also deserves to be taken into consideration while examining the prayer of the applicant for receiving the last drawn wages under Section 17-B of the ID Act. Mr. Patel has submitted that these are the contentions on which it could be said that the applicant does not deserve to be paid the last drawn wages and, therefore, the application deserves to be dismissed. 5.3. Mr. Patel has also submitted that the applicant being a qualified engineer, a presumption goes against him that he would have remained unemployed for all these years and, therefore, on this account also the application deserve to be rejected. 6. Mr. Patel has relied upon a decision of the Apex Court in the case of North East Karnataka Road Transport Corporation vs. M. Nagangouda reported in 2007 (1) Scale 125 and submitted that the income generated through self employment is an income which is required to be considered as an income falling under “gainful employment” and in the instant case, therefore, the income received by way of participation and conducting labour litigations, trading in shares and from the rented property would go to show that the applicant is gainfully employed and, therefore, he has disqualified himself from receiving his last drawn wages under Section 17-B of the ID Act. 6.1. Mr. 6.1. Mr. Patel has also relied upon a decision of this Court in the case of Shah Alpesh Dineshchandra vs. Sharda Constructions Pvt. Ltd., decided on 13.02.2007 in Civil Application for Direction No. 14078 of 2006 in Special Civil Application No. 5505 of 2006 wherein this Court (Coram: R.M. Doshit, J.) has held that “employment in any establishment” appearing in Section 17-B of the Act do not mean that such establishment should be an industry within the meaning of the Act. Besides, the word “remuneration” is a wider term than the word “wage” or “wages”. To remunerate means “reward or pay for the services rendered”. Mr. Patel has submitted that on the aforesaid basis the claim for receiving wages was refused. 7. This Court has heard learned Counsel for the parties at length. Enough opportunity was afforded to the employer to make good its case for denying the wages last drawn to the applicant. The provision of Section 17-B deserves to be borne in mind while examining the rival contentions of the parties. The statutory mandate is in favour of the workman against whom the proceedings are filed either in the High Court of in the Apex Court challenging the award and order of reinstatement that he is to be paid full wages last drawn by him. Further an exception is made by providing that where it is proved to the satisfaction of the High Court or the Apex Court that such workman had been employed and had been receiving adequate remuneration till any such period or part thereof, the Court shall order that no wages shall be payable under the section for such period or part thereof as the case may be. 8. The company has mainly resisted this application on relying upon the applicant’s engagement in trade union activities and alleged act for conducting the cases of workers and that the applicant is receiving remuneration. The applicant has categorically denied this averment of the company and submitted that the company has merely produced only affidavits from sponsored people and they cannot be therefore made basis for denying the benefit of Section 17-B of the applicant. The company has further relied upon the applicant’s trading in shares and stocks indicating that he is receiving sizeable income from these activities and therefore he cannot be given benefit of Section 17-B of the ID Act. The company has further relied upon the applicant’s trading in shares and stocks indicating that he is receiving sizeable income from these activities and therefore he cannot be given benefit of Section 17-B of the ID Act. The applicant has in his affidavit in rejoinder and the further affidavit pointed out that the company has failed in adducing any cogent evidence to establish that the applicant was in receipt of remuneration for rendering his services to fellow workers in conducting their cases. 8.1. This Court is of the view that the affidavits relied upon by the company which are sole basis for making allegation cannot be said to be acceptable evidences proving beyond doubt that the applicant has infact been in receipt of remuneration for conducting the cases. The applicant’s averment in respect of this submission deserves to be noted as it is emerging from the records the case of one Shri Hathiya was pertaining to the year 1999 and that was over since long and in that case also except the affidavit nothing more is adduced by the company which could be said to be an evidence leading to the conclusion that the applicant was in receipt of remuneration. The payment towards union activities in the account of union by the members and others involved in the activity cannot be said to be payment to the applicant so as to classify the same to be remuneration in any sense. 8.2. Moreover, it also deserves to be noted that the incident referred to in the affidavit of Smt. Sakinaben Khamiza the workman applicant has stated that he had never appeared or the case was never been filed by the union as alleged in the affidavit and he had called upon the company to make their allegation good to which the company has not given any reply. These facts would go to show that except the affidavits of some persons out of which atleast two have been said to be not relevant and/or not correct, the Court cannot come to the conclusion that the company is producing sufficient evidence to indicate that the applicant is in receipt of remuneration for rendering his services. These facts would go to show that except the affidavits of some persons out of which atleast two have been said to be not relevant and/or not correct, the Court cannot come to the conclusion that the company is producing sufficient evidence to indicate that the applicant is in receipt of remuneration for rendering his services. On the other hand, the applicant’s say that he being the President of the Union was duty bound to appear and conduct the cases of fellow workers go to show the say of the applicant cannot be disbelieved so as to deny him the benefit of Section 17-B of the ID Act. 9. The applicant has explained about the position of quarter which is infact alloted to the union and which is between therefore the union and the applicant with regard to usage of the quarter. The contention with regard to the applicant’s engaging in share trading activity deserves to be examined in light of the provisions of Section 17-B and the voluntary statement produced by the applicant of his Deemat Account. The trading in shares as it appears from the statement of the Deemat Account do not indicate that the applicant infact trading in shares on a regular basis so as to term him to be a “person trading in shares”. The transactions recorded in the Deemat Account do not go to show that the applicant had been regularly in the business of trading of shares etc. The earning out of his investment in the shares cannot be termed to be remuneration except it is established that the applicant’s earning out of trading in shares is on account of his engagement on regular basis and share trading is his regular activity occupying his time, energy and skill. In other words, the income earned on the investment of shares and by its selling on occasional basis cannot be in any way classified to be remuneration as contained under Section 17-B of the ID Act and, therefore, this Court is of the view that the plea of the company deserves to be rejected on this count also. 10. The reliance placed by Mr. 10. The reliance placed by Mr. Patel upon the decisions in the case of North East Karnataka Road Transport Corporation (Supra) and Shah Alpesh Dineshchandra (Supra) are of no avail to the company as in the instant case neither the applicant could be said to be employed in an establishment nor can he be said to be self employed person receiving adequate remuneration or income so as to deny him the benefit of provisions of Section 17-B. As against this, the authorities relied upon by Mr. Mankad in support of his case are squarely applicable to the facts and circumstances of the present case and, therefore, the application deserves to be allowed. 11. In view of the aforesaid discussion, the Civil Application is allowed. The opponent company is hereby directed to pay the applicant herein his last drawn wages from the date of this application as expeditiously as possible. 12. Mr. Mankad has assured this Court that no adjournment will be sought on their behalf if the main matter is fixed for final disposal. Looking to the rival contentions of the parties, this Court is inclined to fix the main matter for final disposal. The main matter being Special Civil Application No. 669 of 2007, therefore, shall be placed for hearing in the week commencing from 19.11.2007.