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Gujarat High Court · body

2008 DIGILAW 161 (GUJ)

Kanubhai P. Patel v. Nirma Limited

2008-04-01

H.K.RATHOD

body2008
Judgment H.K. Rathod, J.—Heard learned Advocate Mr. Joshi on behalf of original petitioner. Learned Advocate Mr. Parmar is appearing on behalf of respondent. 2. Present application is filed by original respondent with a prayer to grant the benefit under Section 17-B of the Industrial Disputes Act, 1947 on the ground that respondent-workman is not employed in any establishment and not receiving adequate remuneration from any establishment and he is unemployed as per the averments made in Para 3 of the application, against which the affidavit in reply filed by one Shri Anil Bhargav on behalf of the original petitioner. It is not clear from the affidavit that whether Shri Anil Bhargav is a employee or officer of the petitioner Company or not or he may be a stranger for the Company because there is no designation is mentioned that who has filed the affidavit on behalf of original petitioners. However, the facts has been disclosed in Para 8 that Shri Anil Bhargav is DGM, HR Department. Specific averments are made by the petitioner in Paras 5, 6, 7, 8 and 9 which are quoted as under : “Para 5. I humbly submit that the present affidavit is filed to bring certain factual aspects on the record of the captioned application and to bring to the notice of this Hon’ble Court that the original respondent workman is gainfully employed during the proceeding of the subject petition and, therefore, the original respondent workman is not entitled to get benefit under the provision of Section 17-B of the Act. Para 6. I humbly submit that an officer of the petitioner Company Shri Maulik R. Parikh, HR Department, Nirma visited the premises of Shri K.P. Patel (original respondent workman) on 13.12.2007 and during that inquiry it was found that the original respondent workman is working as a Plumber. It was also found that the original respondent workman’s elder son names as Shri Yogeshbhai is also working as Plumber with the original respondent workman and the original respondent workman’s another son names Shri Hiteshbhai is working in garage. I humbly submit that during the inquiry it was found that the original respondent workman is the owner of residential tenement having two floor, each having two rooms with kitchen. I humbly submit that the original respondent workman has let the premises and is earning Rs. 2,000/- per month as rental income from his tenant. I humbly submit that during the inquiry it was found that the original respondent workman is the owner of residential tenement having two floor, each having two rooms with kitchen. I humbly submit that the original respondent workman has let the premises and is earning Rs. 2,000/- per month as rental income from his tenant. I humbly submit that thus the original respondent workman with his family income is earning around Rs. 15,000/- as monthly income. Para 7. I humbly submit that during the inquiry the original respondent workman has accepted under his signature that, original respondent workman is earning Rs. 8,000/- per monthly, which clearly shows that the original respondent workman is gainfully employed and has regular monthly income. I humbly submit that the subject affidavit for securing benefit under Section 17-B filed by the original respondent workman is, therefore, not with clean hands and based on incomplete and incorrect facts. A copy of the said document dated 13.12.2007 under the signature of the original respondent workman is annexured hereto and marked as Annexure-I. Para 8. I humbly submit that Shri Maulik R. Parikh, Officer, HR Department, Nirma has intimated to Shri Anil Bhargav, DGM, HR Department vide letter dated 13.12.2007 about the inquiry made by him at the residence of Shri K.P. Patel (original respondent workman) and/or information regarding the income of Shri K.P. Patel. A copy of the said letter dated 13.12.2007 is annexed hereto and marked as Annexure-II. Para 9. In light of what is stated herein above and in the memo of the captioned petition filed by the petitioners, I say and submit that the Respondent No. 2 is not entitled to and/or eligible for any of the benefits under Section 17-B of the Industrial Disputes Act, 1947 as prayed for and the captioned application does not deserve to be entertained on the ground that it is based on incorrect and inaccurate facts”. 3. Against that rejoinder is filed by the respondent workman. Paras 2 and 3 of the rejoinder are quoted as under : “Para 2. With reference to Paras 3-6 of the reply, I deny the contentions of the opponents as stated. It is misconceived to say that during pendency of the Reference, the workman was gainfully employed. I reiterate that I am not employed in any industrial establishment or getting any remuneration. With reference to Paras 3-6 of the reply, I deny the contentions of the opponents as stated. It is misconceived to say that during pendency of the Reference, the workman was gainfully employed. I reiterate that I am not employed in any industrial establishment or getting any remuneration. I say that I am not gainfully employed as stated by the opponent nor doing any plumbing work as stated. The officer of the Company Mr. Maulik R. Parikh and Mr. K.P. Patel have given false report to support the company. It is not true that I am working as Plumber. I call upon Mr. Parikh and Mr. Patel to point in which establishment I am working as plumber. The working of my son as Plumber is misconceived and not relevant. All the contentions about having residential house etc. has not relevancy. The premises was constructed by my father. I say that the premises exists prior to the order of reinstatement but it is not correct that the rent of the house is Rs. 2,000/- and monthly income of the workman is Rs. 15,000/-. These statements are without any basis only to delay grant of benefits of Section 17-B. Para 3. With reference to Paras 7 to 9 of the reply, it is not true that I am earning Rs. 8,000/- as monthly salary. The document dated 13.12.2007 with signature of the applicant as stated, is misleading. I say that their factory is at Narol and require Plumber and asked me my expectation of salary which I have shown as Rs. 8,000/-. I reiterate that I am not working in any establishment and getting Rs. 8,000/- as stated by opponent. It is not true that I am not entitled to get any relief as prayed for. I say that Section 17-B is interpreted by the Division Bench of the Hon’ble Court. That I am not doing plumbing work as stated, hardly one day in month some work of misc. nature I am doing but either in relation or of known persons but not by charging any amount. The plumbing work by my son has no relevancy. He was doing plumbing work before my termination and award of the Hon’ble Court. That I am not doing plumbing work as stated, hardly one day in month some work of misc. nature I am doing but either in relation or of known persons but not by charging any amount. The plumbing work by my son has no relevancy. He was doing plumbing work before my termination and award of the Hon’ble Court. I am ready and willing to resume duties and as there is no interim relief operates in favour of the opponent, they are required to be directed to reinstate me in service with all consequential benefits. Thus, by misleading me that details were obtained hence strict actions are require to be take against them”. 4. Looking to the averments made in the affidavit of the original petitioner, the respondent-workman is working as plumber and it was found that original respondent workman’s elder son Yogeshbhai is also working as a Plumber and original workman’s another son Shri Hiteshbhai is also working in garage. The respondent workman is owner of residential tenement having two floor each having two rooms with kitchen. The respondent workman has let the premises and his earning is Rs. 2,000/- per month as rental income. Total income of respondent workman comes to about more than Rs. 15,000/- per month. As per statement obtained by visiting officers from the workman who is earning Rs. 8,000/- per month having regular monthly income, therefore, according to the petitioner, the respondent-workman is not entitled for the benefit of Section 17-B of the Industrial Disputes Act, 1947. The respondent workman has disclosed the correct facts that report which has been submitted by the Company is false and it is not true that he is working as a Plumber. He has called upon Mr. Parikh and Mr. Patel to point out in which establishment, the respondent workman is working as Plumber. How the statement obtained by the officers of the Company has been disclosed in Para 3 by the workman. 5. In Special Civil Application No. 24791 of 2006, the award dated 28.09.2006 passed by Labour Court in Reference No. 78 of 1994 is challenged before this Court where the termination order dated 28.10.1993 is set aside by the Labour Court and granted reinstatement with 25% back wages of interim period with consequential benefits. 5. In Special Civil Application No. 24791 of 2006, the award dated 28.09.2006 passed by Labour Court in Reference No. 78 of 1994 is challenged before this Court where the termination order dated 28.10.1993 is set aside by the Labour Court and granted reinstatement with 25% back wages of interim period with consequential benefits. This Court has issued Rule and granted ad interim relief in terms of Para 10 (D) which ultimately confirmed by this Court on 08.02.2007. The workman’s service was terminated on 28.10.1993. Fifteen years have passed the workman is remained without job and more than two years have passed the workman is remained without benefit of Section 17-B of the Industrial Disputes Act, 1947/reinstatement. The petitioner-Company has obtained the stay against the reinstatement meaning thereby that company does not want to reinstate the workman in service. Opposing the stay, present Civil Application is filed by the respondent-workman and submitted that Company does not want to pay last drawn wages to the workman on the ground that he is having residential premises, two sons, one is working as a Plumber and another is working in a garage and other furniture in the premises, therefore, the workman is not entitled the benefit of Section 17-B of the Industrial Disputes Act, 1947. 6. 6. Section 17-B of the Industrial Disputes Act, 1947, being material, is quoted 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”. 7. Learned Advocate Mr. Joshi has relied upon following two decisions of the Apex Court as under while submitting that the workman is not entitled for the benefit of Section 17-B of the Industrial Disputes Act, 1947. (1) In the matter of North East Karnataka Road Transport Corporation vs. Nagangouda, AIR 2007 SC 973 ; (2) In the matter of Niranjan Cinema vs. Prakash Chandra Dubey & Anr., AIR 2007 SCW 7654 = 2007 (13) Scale 760 8. I have considered the two decisions as above relied upon by learned Advocate Mr. Joshi. In the decisions as aforesaid relied upon by the learned Advocate Mr. Joshi, the Apex Court has considered as to whether the self employment could be considered as gainful employment or not while examining the question of back wages for interim period wherein challenge by the workman was against the termination. Apex Court has observed that the employee is having betel shop but it was not clear how much amount was earned by him. Amount which has been earned were not sufficient to make both ends met. In absence of earning from betel shop, Apex Court has granted 50% back wages for interim period. 9. Apex Court has observed that the employee is having betel shop but it was not clear how much amount was earned by him. Amount which has been earned were not sufficient to make both ends met. In absence of earning from betel shop, Apex Court has granted 50% back wages for interim period. 9. In the aforesaid two decisions referred to and relied upon by the learned Advocate Mr. Joshi, the Apex Court was not considering matter under Section 17-B of the Industrial Disputes Act, 1947 and was not considering the self employment or gainful employment or employment in any establishment in the context of the language employed in Section 17-B of the Industrial Disputes Act, 1947 but the Apex Court considered the question of back wages is to be granted to the concerned employee or not. While examining the question of back wages, there is discretionary power with the Court to grant or not to grant back wages if gainful employment is proved by the employer. There is no straight jacket formula for grant of back wages. There is no section or any provision which would control the question of back wages but it is based on the principles laid down by the Apex Court from time to time. Such discretionary powers are not with the Court while examining the matter under Section 17-B of the Industrial Disputes Act, 1947, therefore, while examining matter under Section 17-B of the Industrial Disputes Act, 1947, Court is not having such discretion as it has been controlled by Section 17-B of the Industrial Disputes Act, 1947. Therefore, this Court has no discretion to deny benefit under Section 17-B of the Industrial Disputes Act, 1947 if the workman has been satisfying the conditions incorporated in Section 17-B of the Industrial Disputes Act, 1947 and the employer has been unable to point out that the workman has been employed in any establishment for any period subsequent to the date of award and receiving adequate remuneration. 10. In both the cases issue which was examined by the Apex Court was in respect of the claim of back wages for interim period and not examined the issue whether self employment is to be considered as gainful employment or not while considering application under Section 17-B of the Industrial Disputes Act, 1947. 10. In both the cases issue which was examined by the Apex Court was in respect of the claim of back wages for interim period and not examined the issue whether self employment is to be considered as gainful employment or not while considering application under Section 17-B of the Industrial Disputes Act, 1947. Therefore, in view of peculiar facts of the present case governed by Section 17-B of the Industrial Disputes Act, 1947, aforesaid two decisions referred to by learned Advocate Mr. Joshi are not applicable to the present case. 11. Learned advocate Mr. Joshi appearing on behalf of original petitioner is not able to satisfy this Court that the respondent workman is employed in any establishment and receiving adequate remuneration from the establishment. There is no proof produced before this Court by the Company that the workman is employed in any establishment except the averment that he is working as a Plumber. Self-employment in respect to language of Section 17-B cannot be considered to be a gainful employment. That aspect is examined by this Court in the case of University Granth Nirman Board vs. Ydesinh Togaji Solanki, reported in 2003 (1) GLH 626 . This decision is confirmed by the Division Bench of this Court in case of Bhanulal Khimjibhai Solanki vs. Deputy Executive Engineer, reported in 2005 (I) LLJ 655 and in case of Cyanides and Chemicals Company vs. Mansingh Mangalram Varma, reported in 2006 (II) LLJ 191 and in case of M.J. Patel vs. Tata Chemicals Ltd., reported in 2008 (I) CLR 588, where self-employment or doing miscellaneous work cannot considered to be gainfully employment for denying the benefit of Section 17-B of the Industrial Disputes Act, 1947. Therefore, this Court has considered the same subject matter in Civil Application No. 14565 of 2006 in Special Civil Application No. 20055 of 2006 dated 27.03.2008. 12. Therefore, according to my opinion, the petitioner Company failed to establish before this Court by producing satisfactory evidence that the workman is employed in any establishment and receiving adequate remuneration from the establishment. Merely stating that workman is working as a Plumber and only on that ground, cannot deny the benefit under Section 17-B of the Industrial Disputes Act, 1947. Therefore, according to my opinion, the workman is entitled for the benefit under Section 17-B with effect from 28.09.2006 till 31.03.2008. Merely stating that workman is working as a Plumber and only on that ground, cannot deny the benefit under Section 17-B of the Industrial Disputes Act, 1947. Therefore, according to my opinion, the workman is entitled for the benefit under Section 17-B with effect from 28.09.2006 till 31.03.2008. Therefore, it is directed to the petitioner to pay the last drawn wages receiving by the workman including maintenance allowance if any available as per the service rules for the period from 28.09.2006 to 31.03.2008 within a period of four weeks from the date of receiving the copy of said order and it is further directed to pay regular last drawn wages to the workman till the main matter is finally decided by this Court. 13. Accordingly, present Civil Application is disposed of.