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2010 DIGILAW 226 (GUJ)

EXECUTIVE ENGINEER v. AYUBBHAI LADHARBHAI

2010-04-27

D.H.WAGHELA, M.D.SHAH

body2010
JUDGMENT D.H.WAGHELA All the appeals are preferred from the common order dated 23.07.2007 of learned Single Judge of this Court whereby Civil Applications of the respondents were allowed with the direction to pay last drawn wages to them from the date of filing of the petitions and the petitions were also ordered to be fixed for final hearing, by joint request of the parties, on 26.07.2007. There is no dispute about the facts that the respondents are ordered to be reinstated in their service by awards of the Labour Court which are under challenge by the appellant herein and their petitions are pending. It was also conceded that for one or the other reason, the petitions were not heard on the agreed date i.e. 26.07.2007 and they are not heard even as on today. While the impugned order is made under Section 17-B of the Industrial Disputes Act, 1947 (for short 'the Act'), the present appeals are filed under Clause 15 of the Letters Patent. It was also fairly conceded at the Bar that the respondents are already paid their arrears and are being paid the last drawn salary in terms of the impugned order. It was further agreed that the parties were ready and willing to have the main petitions finally heard and disposed at the earliest practicable opportunity and a request to learned Single Judge to take up the pending petitions on 5th May, 2010 would help. Assailing the impugned order, learned counsel, Mr.Hasurkar, vehemently argued that the respondents were originally employed as casual labourers for a few days on daily wage basis and in spite of their intermittent service under the appellant, the Labour Court had awarded reinstatement due to which, the appellant was compelled to challenge the awards. He further submitted that documentary evidence of holding of agricultural land by each of the respondents was placed on record in support of the submission that the respondents were self-employed persons even before and after the alleged termination of their service. Therefore, the respondents could not have claimed absence of employment in any establishment and lack of gainful employment and the Court ought to have appreciated that such respondents holding their own agricultural land could not be presumed to be wholly unemployed or unable to maintain themselves. Therefore, the respondents could not have claimed absence of employment in any establishment and lack of gainful employment and the Court ought to have appreciated that such respondents holding their own agricultural land could not be presumed to be wholly unemployed or unable to maintain themselves. On that basis he submitted that the respondents were required to be denied discretionary relief under Section 17-B of the Act in view of the fact that the appellant is an Officer of the Government and the idle wages have to be paid out of public exchequer. Dealing with the above argument, learned Single Judge has, in the impugned order, relied upon several judgments of this Court and held that it is for the employer to show that the workmen concerned are gainfully employed and they are receiving remuneration during the pendency of the petitions. It is observed that merely because the original applicants own agricultural land abutting on a canal, they could not be denied the benefit of Section 17-B of the Act. Adding to that, learned counsel, Mr.Rathod appearing for the respondents, submitted that the lands shown to have been held by the respondents are also clearly held with many other members of the family and such joint holding of the lands cannot by itself be the evidence of any gainful employment or receipt of any income or remuneration out of such lands. He further submitted that the respondents were always ready to serve under the appellant pursuant to the awards of the Labour Court, but after the petitions of the appellant being admitted and injunction being granted against the impugned awards, the respondents were neither offered any job or work nor were they paid the last drawn salary which made it difficult for the respondents to survive. Recently, this Court has, by order dated 26.04.2010 in Civil Application No.10400 of 2007 and allied matters, adopted the view as under: 3. Considering the above facts and submissions, it would appear that even if income from self-employment were included in gainful employment, the requirements of proof under section 17-B are proof to the satisfaction of the High Court that the workman has been employed and has been receiving adequate remuneration for the whole or part of the relevant period. Considering the above facts and submissions, it would appear that even if income from self-employment were included in gainful employment, the requirements of proof under section 17-B are proof to the satisfaction of the High Court that the workman has been employed and has been receiving adequate remuneration for the whole or part of the relevant period. As seen hereinabove, the facts of employment in any establishment or self-employment are not proved to the satisfaction of this Court and there is no evidence whatsoever of receiving any remuneration, much less adequate remuneration, during any part of the period of pendency of the proceeding before this Court. .... The above conclusions are equally applicable in the facts of the present case in so far as neither any evidence of actual gainful employment of the respondents could be placed on record by the appellant nor could there be any presumption about receipt of adequate remuneration by the respondents when the mandatory provisions of Section 17-B clearly require proof to the satisfaction of the High Court that the workman concerned has been employed and has been receiving adequate remuneration during the relevant period. Therefore, in absence of the necessary evidence and in view of the affidavits filed by the respondents about their unemployment, the respondents were entitled, as a matter of right, to full wages last drawn by them, during the pendency of the proceedings before this Court. Therefore, we do not find any substance in the appeals of the appellant and dismiss them accordingly with a request to learned Single Judge to expedite hearing of the main petitions, even as learned counsel for the parties have agreed to co-operate in the earliest practicable hearing and disposal of the petitions. Notice is discharged. Civil Applications in the appeals would not survive in view of this order and they stand disposed accordingly.