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2011 DIGILAW 52 (GUJ)

SUBHASHBHAI RAMNIKBHAI GADHIYA v. GENERAL MANAGER

2011-01-28

S.R.BRAHMBHATT

body2011
JUDGMENT Rule. Mr. Kakkad waives service of notice of Rule. 2. The applicant-respondent no.1 in main matter i.e. S.C.A. No.2776 of 2009, has taken out this application for the following reliefs: “(A)The Hon'ble Court may be pleased to admit and allow the present application; (B) The Hon'ble court may be pleased to vacate the interim relief, operating in favour of the respondent Nos.1 and 2 herein; (C) The Hon'ble Court may be pleased to direct the respondent Nos. 1 and 2 to supply the basis of calculation, whereby, it has made the payment on 10-7-2010; (D) The Hon'ble Court may be pleased to grant such other and further relief(s) in the interest of justice; 3. The facts in brief leading to filing this application need to set out as under. 4. The applicant-original workman was working with the petitioner Bank as watchman. He was constrained to make a request for the appropriate wages and privileges attached to the regular employees' posts in the Bank. The appropriate application in form of B.I.R. Application No. 3/2003 came to be registered with appropriate forum. The workman's services were terminated as he raised the dispute. Thus, there was subject matter of employment in the B.I.R. Application No. 3/2003. The competent Court has accepted and allowed the said application and ordered that the applicant workman be paid all the benefits of permanency namely, wages, dearness allowances and all other benefits. This order was made on 16th January, 2008. This order was carried into appeal by the Bank being Appeal (I.C.) No.2/2008 in the Industrial Court, Rajkot, and the Appellate Court vide its order dated 4th February, 2009 rejected the same and declared that the order dated 16th January, 2008 passed by the Labour Court in Original Application No. 3/2003 was absolutely just and proper. Being aggrieved and dissatisfied with the said order made in the appeal, the Bank has preferred petition being S.C.A. No.2776/2009. In this petition on 4.11.2009 this Court (Coram: JAYANT PATEL, J.) while issuing Rule, granted ad-interim relief where under the operation of the award was stayed on condition that the petitioner i.e. Bank complies with the provisions of Section 17-B of the I.D. Act. In this petition on 4.11.2009 this Court (Coram: JAYANT PATEL, J.) while issuing Rule, granted ad-interim relief where under the operation of the award was stayed on condition that the petitioner i.e. Bank complies with the provisions of Section 17-B of the I.D. Act. It was also observed by the Court in the order that if, in case, the petitioner is not desirous of paying any idle wages to the respondent workman under Section 17-B of the I.D. Act, then in that case without prejudice to the rights and contentions in the petition, it would be open to the petitioner to offer work to the respondent workman and to pay wages but such wages shall not be below the minimum wages prescribed for such work. The Court while passing the order also observed as under: It is also observed that such work can also be provided at the instance of petitioner by respondent no.2 to the concerned workman. 5. It is at this stage appropriate to mention that the petition is filed by the Bank against the workman being respondent no.1 Manager/proprietor, Watch and Ward Consultancy of Veraval, address is mentioned in the cause title, meaning thereby the petitioner Bank has joined the workman and its contractor as a party respondent in the main petition. Its contractor is joined as a party respondent no.2 in the main proceedings. 6. The workman, being aggrieved by the observation of the Court made in the order dated 04.11.2009 namely, It is also observed that such work can also be provided at the instance of petitioner by respondent no.2 to the concerned workman. preferred Letters Patent Appeal being L.P.A. No.303 of 2010 In S.C.A. No.2776 of 2009, wherein the Division Bench of this Court allowed the appeal and modified the order. Relevant portion for our purpose needs to be extracted as under: “Learned advocate Mr. Mithani has appeared for the appellant. He has submitted that two Courts below have declared that the respondent no.1-Bank is the employer of the appellant. It is the respondent no.1-Bank which has challenged the said finding before the learned Single Judge and has obtained stay of the order. It is, therefore, the Bank which is obliged to comply with the provisions contained in Section 17B of the Act. It is the respondent no.1-Bank which has challenged the said finding before the learned Single Judge and has obtained stay of the order. It is, therefore, the Bank which is obliged to comply with the provisions contained in Section 17B of the Act. It should be the Bank which should either offer employment to the appellant or should pay last wages drawn by the appellant. The fate of the appellant could not have been left to the mercy of the respondent no.2-Contractor. We do find substance in the submissions made by learned advocate Mr. Mithani. It is indeed the duty of the writ petitioner to comply with the provisions contained in Section 17B of the Act. We, therefore, allow this Appeal. The Order dated 4th November, 2009 made by the learned Single Judge pending Special Civil Application No.2776 of 2009 is modified as under:- “By ad interim order, the operation of the Award is stayed on condition that the petitioner complies with the provisions of Section 17-B of the I.D. Act. It is also observed that if the petitioner is desirous not to pay any idle wages to the respondent workman under Section 17-B of the Act without taking work then in that case without prejudice to the rights and contention in petition, it would be open to the petitioner to offer work to the respondent workman and to pay wages but such wages shall not be below the minimum wages prescribed for such work The parties will bear their own cost. 7. The applicant has submitted in the memo of the application that this order of the Division Bench was carried before the Apex court by way of Special Leave to Appeal being S.L.P. No.14572/2010, which came to be dismissed by the Apex Court vide its order dated 14.05.2010. Thus, the observation with regard to the Bank's application either to pay 17-B wages to the workman or offer employment, become confirmed and final. 8. Thus, the observation with regard to the Bank's application either to pay 17-B wages to the workman or offer employment, become confirmed and final. 8. The workman has contended in this application that he was called on 25th June, 2010 and handed over a draft of Rs.20,250/- dated 10.07.2010 by the Bank without there being any explanation as to what was that money being paid to him nor did the Bank bother to explain to the workman, about the break-up of the said amount and in what way the Bank was discharging its obligation cast upon it under the statute especially provisions of Section 17-B of the Industrial Disputes Act, 1947. 9. The workman's repeated request for compliance with the order remain unheeded and hence the workman was left it no choice but to take out this application, seeking appropriate order and relief as mentioned in the memo of the petition which have been set out herein above. Mr. Amar D. Mithani, learned advocate appearing for the petitioner-workman, in support of his case, relying upon the following judgments namely, Bhanulal Khimjibhai Solanki Vs. Deputy Executive Engineer reported in 2004 (3) G.L.H. 375 and Bharat H. Parmar Vs. Airport Authority of India & Ors. reported in 2010 (2) G.L.R. 930 . 10. Shri R.C. Kakkad, learned advocate appearing for the original petitioner-Bank and respondent herein above in this application, contended that the workman has no right to receive wages under Section 17-B of the Industrial disputes Act, when the workman is offered employment and when he declined to accept the same. Learned advocate for the Bank invited this Court's attention to the invitation or offer of employment at page 32 in the compilation which is communication dated 23.11.2009, then again communication dated 25th June, 2010 at page 34 and one more communication at page 53 dated 15th January, 2011. All these three communications are, as could be seen from even a cursory glance on them, not issued by the petitioner Bank. The learned advocate for the Bank relying upon these three communications canvassed the submission that these three invitations for employment were offered at the behest of Bank as the Watch and Ward Consultancy is in contract with the Bank and Watch and Ward Consultancy is providing security guards to the Bank and its premises. The learned advocate for the Bank relying upon these three communications canvassed the submission that these three invitations for employment were offered at the behest of Bank as the Watch and Ward Consultancy is in contract with the Bank and Watch and Ward Consultancy is providing security guards to the Bank and its premises. Therefore, when Watch and Ward Consultancy has offered an employment to the workman which he did not accept, then the Bank is absolve of its liability to pay Section 17-B of the I.D. Act wages to the workman. Learned advocate for the Bank has further submitted that the Division Bench's order cannot be misconstrued to suggest only that the Bank is responsible to pay 17-B of the I.D. Act wages or offer employment. The Division Bench's order is only to the effect that if, in case, 17-B wages are required to be paid, then they are to be paid by the Bank but Bank can always ask and order its contractor to offer work to the workman and in such a circumstances when workman declines to accept this offer of employment, he disentitles himself for receiving any wages under Section 17-B of the Industrial Disputes Act. 11. Learned advocate for the Bank without prejudice to the aforesaid contention and in alternative, submitted that the workman in fact did not have any right to claim 17-B wages as the requisite affidavit, as envisaged under the provision of Section 17-B of I.D. Act, is filed only on 19th January, 2011, prior thereto, the so called affidavits filed, as contended by learned advocate for the applicant-workman, are not affidavits par-taking characteristics of an affidavit to be filed under Section 17-B of the Industrial Disputes Act and hence the workman is not entitled to seek any relief, much less, relief of vacation of interim relief as prayed for by the workman in the present application. The learned advocate appearing for the Bank submitted that fortunately, in the instant case, the Watch and Ward Consultancy being respondent no.2 has offered employment to the workman but in a given case any other alien establishment who has no nexus with the Bank or nexus with the dispute nor is a party to dispute if it offers employment to the workman and when workman declines such an offer of employment then he is not entitled to receive 17-B wages from the employer who has filed petition or proceeding before higher forum. Here in the present case despite the offer of the respondent No.2-Watch and Ward Consultancy, applicant did not join the work, therefore, he is not entitled to receive wages as per Section 17-B of the Industrial Disputes Act. 12. This Court is unable to accept submissions canvassed on behalf of the respondent-Bank in this application for the following reasons namely; (i) The provision of Section 17-B of the Industrial Disputes Act, makes it incumbent upon the employer to see to it that the workman is supported during the period for which the order of reinstatement is challenged by the employer and some interim orders are obtained against the said order of reinstatement. In order to see to it that the workman is, in the meantime, in a position to sustain himself and his family members. This benevolent provision is made and it has now under gone interpretation at various stages. By now, the law in respect of Section 17-B of the Industrial Disputes Act, is absolutely clear and needs no further attention of the Court on this matter. (ii) The employer is under an obligation to pay the last drawn wages to the employee when employer has challenged the order of reinstatement passed by the Industrial Court or Forum or Labour Court. (iii) The employer in a given case, as it happened in the instant case, is given liberty to take work from the employee so as to avoid payment of idle wages. Court hasten to add here that the device developed by Courts where under liberty is sometime reserved to the employer to take work from the employee, is also to be viewed appropriately and as per the scheme of the Industrial Disputes Act, 1947, the interim orders are strictly to be passed in conformity with the provision of law. Court hasten to add here that the device developed by Courts where under liberty is sometime reserved to the employer to take work from the employee, is also to be viewed appropriately and as per the scheme of the Industrial Disputes Act, 1947, the interim orders are strictly to be passed in conformity with the provision of law. (iv)The Courts are passing order under Articles 226 and 227 of the Constitution of India and, therefore, if any interim order is passed, the same is to be passed in conformity with the arena of jurisdiction confirmed upon this Court under Articles 226 and 227 of the Constitution of India. Articles 226 and 227 of the Constitution of India make abundantly clear that the justice is to be done in accordance with law and orders are to be passed as per the provisions of law. In the instant case and in many other cases when liberty is reserved to the employer to obtain work from the workman so as to avoid payment of idle wages, it is ordered only with a view to see to it that the employer in many cases, at times, the government agency or a instrumental of the state may not have to keep paying wages without taking work from the workman which in turn workman sometime not like to receive as it may not be indeed, Court help to him. Therefore, the liberty to take work is ordered, then such orders are to be reiterated at the cost of repetition in the strict purview of the law. In the given case, therefore, when such an order is passed, the employer is not even entitled to post the workman to any other posts, then the post on which he is ordered to be reinstated. Even for such a case, at times, workman is entitled to refuse to work as that would not be strict compliance with the provision of law. In the instant case, as could be seen, there was a specific liberty reserved to the Bank to offer employment to the workman even through its contractor who happens to be respondent No.2 in the original petition but the workman felt aggrieved by that liberty and chosen to assail those observations in Letters Patent Appeal being L.P.A. No.303/2010, wherein the Division Bench has specifically negatived this liberty based upon the findings recorded by the Courts. When the Division Bench in turn has negatived that liberty to offer employment through contractor-respondent no.2 in the main petition, then question arises as to what extent the Bank was justified in offering employment through contractor or withholding wages on that ground which are otherwise payable under Section 17-B of the Industrial Disputes Act, 1947. The answer is emphatic. The Bank is absolutely not justifying in undertaking the exercise which it is undertaking so far. The Bank is under serious misconception of law and in fact, as well in propounding that the Bank can absolve itself of its liability to pay 17-B wages, if Bank or any other establishment not related to Bank is offering an employment to the workman and workman is not ready to accept the same, had it been the case where the Bank had offered an employment to the workman on the post on which there is an order of reinstatement and if there was some deviation in the nature of work then there could have been some scope left to Bank to argue that the nature of job may not govern the payment of wages. In the instant case, on the contrary the Bank has not only offered any job but it had stopped paying wages on its own accord, though it was under obligation to pay as per the order dated 04.11.2009 which stood modified by the Division Bench's order dated 08.04.2010. 13. The proposition of the Bank's advocate with regard to the employee-workman, not accepting an offer of employment from even 3rd party would render him disentitle to receive wages, is required to be rejected, as such a proposition is, to say the least absolutely illegal, uncalled for and contrary, in letter and spirit, to law and ambit of Industrial Disputes Act, especially Section 17-B of the Industrial Disputes Act, 1947. The Bank could not have avoided payment of 17-B wages without itself offering employment to the workman. In the instant case, when the Bank had received order from the Division Bench which contains unequivocal clarification that the Bank cannot offer employment through contractor namely, Watch and Ward Consultancy and when the order of Division Bench was carried into S.L.P. and the S.L.P. also came to be dismissed by the Apex Court, then one fails to understand the Bank's stand. It is nothing but sheer disrespect for the majesty of law and justice. It is nothing but sheer disrespect for the majesty of law and justice. The Bank being petitioner before this Court was, otherwise also not under obligation to obey the order for sustaining the interim orders which it had obtained in its favour. The Bank has miserably failed in observing the provision of Section 17-B of the Industrial Disputes Act and, therefore, this Court is left with no choice but to vacate the interim relief forthwith. Accordingly, the said relief is vacated. 14. This Court is also of the view that a petitioner, an employer who moves this Court under Articles 226 and 227 of the Constitution of India and seeks discretionary reliefs which relief makes it statutorily incumbent upon it to make payment of last drawn wages to the workman during pendency of these proceedings, then compliance thereof is its solemn duty and if such employer or establishment fails in carrying out such duties, then in my view, it amounts to committing default in prosecuting the matter. Therefore, in fact the petition itself deserves to be dismissed at this stage and appropriate liberty could be reserved to rectify the default but as it has come on record that, there was some payment of Rs. 20,250/-, I am of the view that let there be one more opportunity granted to the Bank to rectify its defaults and pay the arrears admissible to the workman within 10 days from today i.e. on or before 11th February, 2011. It is observed that if, in case, the arrears of 17-B wages are not paid by 11th February, 2011 and when the workman places an application to this effect, duly affirmed on oath, the Registry may treat this matter as having been dismissed for default, without being referred to the Court. In case, if the payment is made then it would be open to the Bank to make appropriate application for reviving the order of interim relief with appropriate application with a copy to other side. Workman is at liberty to file recovery application from the date of the award. 15. At this stage Shri Kakkad makes a request for staying this order up to 15th of February, 2011. In my view, such a request is not required to be entertained as otherwise also enough time is granted for compliance of this order and therefore, this request is rejected. 15. At this stage Shri Kakkad makes a request for staying this order up to 15th of February, 2011. In my view, such a request is not required to be entertained as otherwise also enough time is granted for compliance of this order and therefore, this request is rejected. It is clarified that the stay is vacated right from today. 16. Mr. Mithani is saying magnanimity of his client for not pressing cost. Rule made absolute to the aforesaid extent. No order as to costs.