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Rajasthan High Court · body

2019 DIGILAW 1512 (RAJ)

Kamdhenu Ispat Limited v. Omprakash Sharma

2019-05-15

ASHOK KUMAR GAUR

body2019
JUDGMENT Ashok Kumar Gaur, J. - Matter comes up on Misc. Application No. 3306/2019, filed by the petitioner for modification and recalling of the order dated 27th March, 2019, passed by this Court. 2. This Court vide order dated 27th March, 2019, considered the Miscellaneous Application No. 10589/2018, filed by the respondent-workmen under Section 17B of the Industrial Disputes Act, 1947, whereby prayer was made to pay last wages drawn from the date of filing of the writ petition. 3. Counsel for the respondent-workman submitted before this Court on 27th March, 2019 that the operation of order dated 29th May, 2017, has been stayed by this Court and the respondent-workman was not gainfully employed and he was not in a position to maintain his family, accordingly, the prayer was made to pay at least the last wages drawn by the respondent-workman. This Court considered the affidavit filed by the respondent-workman, wherein specific averment was made that respondent was not in gainful employment till date and he was not in a position to maintain his family. 4. This Court finds that petitioner-employer had not filed any reply to the application under Section 17B of the Industrial Disputes Act, 1947 and as such after considering the submissions made by counsel for the parties, this Court allowed the application and held respondent-workman to be entitled for the last wages drawn by him at the time of termination of his services. The arrears were also ordered to be paid from the date of filing of the writ petition and month to month basis payment was also made to the employer during pendency of the writ petition. 5. Counsel for the petitioner while arguing the miscellaneous application has pleaded before this Court that the application under Section 17-B was erroneously allowed by this Court believing the affidavit of the respondent-workman. Counsel for the petitioner submitted that a false affidavit was filed by the respondent by saying that he was not in gainful employment, as the complete facts were not disclosed and on the basis of false affidavit, this Court passed the order. 6. Counsel referred to the averment made in the application that the respondent was not only in employment of M/s. Acro Paints Limited but he also joined M/s. Acro Paints Limited at the higher monthly salary as Chemist than the last salary drawn by him from the petitioner. 6. Counsel referred to the averment made in the application that the respondent was not only in employment of M/s. Acro Paints Limited but he also joined M/s. Acro Paints Limited at the higher monthly salary as Chemist than the last salary drawn by him from the petitioner. The appointment letter issued by M/s. Acro Paints Limited has been placed on record as Annex. 2. Counsel referred to para 8 of the application and submitted that respondent tendered his resignation with the petitioner-Company on 6th September, 2012 and the same was accepted and the respondent-workman was in another employment from 2nd November, 2012 with M/s. Swaraj Paints, Bhiwadi, District Alwar and as such a resume has also been filed by the respondent as Annex. A/3 to show that false affidavit was sworn by him to this Court while filing the application. 7. Counsel also referred to para 9 of his application wherein the respondent-employee, from the date of joining, have paid the provident fund amount till his exit on 16th November, 2017. The subscriber ledger of the employee's provident fund is also filed with the writ petition as Annex. 4 with the application. 8. Counsel also submitted that after tendering resignation as Senior Executive in Acro Paints Limited on 14th November, 2017, the workman cited reason to have growth in his life and as such workman left M/s. Acro Paints Limited. 9. Learned counsel for the petitioner submitted that essential requirement of Section 17B of the Industrial Disputes Act, 1947 was not complied with by the respondent-workman and he was in gainful employment. Counsel submitted that instead of giving correct facts in the affidavit, a false affidavit was sworn and filed before this Court and as such the proof of employment of the respondent-employee from 2nd November, 2012 till 14th November, 2017 had not come before this Court and as such the order passed by this Court requires to be recalled. 10. Learned counsel also submitted that the respondent-workman was drawing much higher salary from M/s. Acro Paints Limited i.e. Rs. 22,431/- per month whereas he was drawing Rs. 21,758/- per month from the petitioner-Company and as such he was not only gainfully employed but also had got a better job. 11. Counsel for the respondent-workman has filed reply to the application and has averred in para 7 of his reply that respondent did not file any false affidavit. 22,431/- per month whereas he was drawing Rs. 21,758/- per month from the petitioner-Company and as such he was not only gainfully employed but also had got a better job. 11. Counsel for the respondent-workman has filed reply to the application and has averred in para 7 of his reply that respondent did not file any false affidavit. It is reiterated that at the time of filing of application under Section 17-B of the Act, 1947, the respondent was not working anywhere and was not in gainful employment at the time of filing of the application. 12. The respondent has further averred that application filed by the petitioner-Company no-where shows that respondent was employed anywhere else uptil 16th November, 2007 and after that respondent is unemployed and as such at the time of filing of the application, the respondent was not in employment. 13. The additional averment has been made that the application for recalling the order under Section 17-B of the Act, 1947 is not maintainable and if the petitioner-company is aggrieved against the order passed, it can challenge the same before the Higher Forum. 14. Counsel for the petitioner filed rejoinder to the reply and in para 9 it has been again reiterated that the respondent had admitted that he was in gainful employment till 16th November, 2017 and as per the information gathered by the petitioner, the respondent had worked in M/s. Woodco Paints, Bhadurgarh; M/s. Wembley Paints, Bhadurgarh; and M/s. Glaze Paints Limited, Bhiwadi, Rajasthan after 16th November, 2017 and looking to the conduct of the respondent and filing of false affidavit, this Court needs to take an instant action and as such prayer is made that the order passed by this Court is recalled. 15. I have heard the submissions made by learned counsel for the parties and perused the material available on record. 16. This Court vide order dated 27th March, 2019, has allowed the application as affidavit was filed by the petitioner, that he was not in gainful employment till date. This Court finds that the affidavit did not disclose the complete facts and if the respondent was already in employment, as has come on record, such kind of averment ought not to have been made in the additional affidavit. 17. This Court finds that the affidavit did not disclose the complete facts and if the respondent was already in employment, as has come on record, such kind of averment ought not to have been made in the additional affidavit. 17. This Court further finds that due to non filing of reply to the application by the workman under Section 17-B, this Court had no option except to believe the averments made at that point of time. This Court finds that once all the facts relating to employment of the respondent-workman has come on record, the order dated 27th March, 2019 cannot be continued and the same requires to be recalled. 18. The submission made by learned counsel for the respondent-workman that respondent was not employed at the time of filing of the application and the word "till date" means at the time of filing of the application, the workman should not be in employment, cannot be accepted by this Court. If a workman makes an averment that he is not gainfully employed, necessarily implies that while he has filed the application, he was not employed at all and if such interpretation, as has been pleaded by learned counsel for the respondent, is allowed, the very purpose of entertaining and allowing the application under Section 17-B of the Act will be frustrated. The respondent-workman ought to have been honest and should have come out before this Court with clear facts about his averments and by concealing this fact, this Court has been mislead. 19. This Court in a normal course would have taken the serious action against the respondent-workman, however, this Court at present is not taking any action against the respondent-workman and only a caution is issued to counsel for the respondent-workman that he too should be vigilant while filing such affidavit. 20. Counsel for the respondent being an officer of the Court ought to have also verified the correct facts from the client, before the affidavit was sworn by his client. Considering the overall facts of the case, the order passed by this Court on 27th March, 2019 is recalled and the Miscellaneous Application stands allowed.