Gujarat High Court
Ramprakash R. Upadhyay vs Manager Rang Pharmaceticals Indus. on 2 April, 2008
Author: H.K. Rathod
Bench: H.K. Rathod
JUDGMENT H.K. Rathod, J.
1. Heard learned Advocate Mr. PH Pathak for the applicant original workman and Mr.JV Japee, learned Advocate for the opponent original petitioner first party.
2. Main matter being SCA No. 24778 of 2006 has been filed by the original petitioner challenging award made by the labour court, Bharuch in Reference (LCB) No. 19 of 1997 dated 31.7.2006 wherein the labour court has granted reinstatement with 40% back wages for interim period. In the said petition,rule has been issued by this Court on 30.11.2006 and ad. interim relief has been granted by this Court but on 12.3.207, ad interim relief in terms of para 8(b) was confirmed subject to compliance of Section 17B of the ID Act, 1947, meaning thereby, reinstatement has been stayed by this Court. Order of dismissal/discharge/termination is dated 18.10.1996 and more than 12 years have passed from the date of dismissal. Respondent workman is suffering from cancer as per the observation made by the labour court in para 2 of award after considering the statement of claim filed by the workman.
3. Present civil application has been filed by the workman with a prayer to grant benefit of Section 17B of the ID Act, 1947 as the reinstatement has been stayed by this Court and he is without work, not gainfully employed in any establishment and he is willing to work and not gainfully employed and not receiving any remuneration from any establishment. Some miscellaneous work is being done by his wife and accordingly, he is maintaining his family.
4. Present civil application has been opposed by the present opponent by filing reply to this civil application page 5, by one Shri Pareshbhai J. Shah contending inter alia that the workman is doing building construction business and working as contractor. The opponent has relied upon the proceedings of civil suit No. 256 of 2006 and also criminal complaint under Section 138 of the Instruments Act. Learned Advocate Mr. Japee has made reference to page 8 a suit filed by the workman wherein it is mentioned that he is having contract to construction of building. He relied upon the affidavit dated 25.7.2006 wherein the workman has mentioned that he is working and also doing the contract work. Page 13 is also containing same facts as mentioned in affidavit dated 25.7.2006. Then, learned Advocate Mr. Japee relied upon page 16 which is a criminal case No. 829 of 1999 filed by the present workman wherein business has been shown as his occupation. It has been stated therein that the complainant i.e. present workman is doing the business of supply of sand, bricks, grits etc. (carting agent). Except this evidence, learned advocate Mr. Japee has not pointed out any other document for justifying the defence of opponent that the workman is gainfully employed during the interim period and not entitled for the benefit of Section 17B of the ID Act, 1947.
5. Considering the facts of the present case, the workman was dismissed/discharged/terminated on 18.10.96. Award of reinstatement is dated 31.7.2006. Documents relied upon by learned advocate Japee is prior to date of award. One is dated 25.7.2006 which is an affidavit of the respondent workman. Affidavit of the workman under Section 17B of the ID Act, 1947 is dated 20th March, 2007 and the petitioner has not been able to point out by producing any document that subsequent to the affidavit under Section 17B of the ID Act, 1947 also, petitioner has been working in any establishment or has been earning by doing work in any establishment. In view of that, both the affidavits relied upon by learned Advocate Mr. Japee are relating to the period prior to the date of affidavit of workman under Section 17B of the ID Act, 1947 and also prior to date of Award. As such, it is having no relevancy because after the award, workman is entitled for the benefit under Section 17B of the ID Act, 1947. Criminal case of the year 1999 where the averment has been made on 11.5.1999 has nothing to do with the claim of the workman from the date of award under Section 17B of the ID Act, 1947, therefore, the employer shall have to prove gainful employment from the date of the award onward and not for the period prior to the date of the award. There is no evidence produced by the petitioner which would prove gainful employment of the workman from the date of award onward. So, there is no evidence on record which would prove gainful employment of the workman from the date of award and for subsequent period. Record produced by the original petitioner is not relevant and not giving clear factual position subsequent to the date of award of the labour court 31.7.2006 and the benefit under Section 17B of the ID Act, 1947 has to be given to the workman from the date of the award if the workman contends that he is unemployed, not gainfully employed in any establishment and receiving adequate remuneration and has remained uncontroverted as the employer has not been able to point out from any document that subsequent to the award dated 31.7.2006, workman has been engaged in business or employed in any establishment and is earning adequately therefrom. Therefore, in light of this fact, Section 17B of the ID Act, 1947 is required to be considered. Same is, therefore, reproduced as under:
17B- 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.
6. Considering the language employed in Section 17B of the ID Act, 1947, it is clear that the language thereof is mandatory in nature having some object to grant last drawn wages to the workman during the pendency of the proceedings in higher courts challenging reinstatement of workman. Considering the language of Section 17B of the ID Act, 1947, meaning of gainful employment is specified by the section itself, therefore, no other meaning could be imported or taken or applied while considering the gainful employment as mentioned in Section 17B of the ID Act, 1947. Provision itself is very much clear where it is provided that 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.
7. If the employer is able to satisfy the court that the workman workman had been employed and had been receiving adequate remuneration during any such period or part thereof, then, the matter would be covered by the proviso to Section 17B of the ID Act, 1947 but in the case before hand, the petitioner employer has not been able to prove that the present workman had been employed and had been receiving adequate remuneration during any such period or part thereof commencing from the date of the award. All the material produced by the petitioner is relating to the period prior to the date of award and not in respect of the date subsequent to the date of award and, therefore, considering the language of Section 17B of the ID Act, 1947 as it is, benefit of Section 17B of the ID Act, 1947 cannot be denied to the workman as the petitioner is not able to prove gainful employment of the workman for the period subsequent to the date of award 31.7.2006 in the establishment.
8. Learned Advocate Mr. Japee has relied upon two decisions of the apex court as under while submitting that the workman is not entitled for the benefit of Section 17B of the ID Act, 1947.
(1) in the matter of North East Karnataka Road Transport Corporation v. Nagangouda.
(2) 2007 (13) SCALE 760 in the matter of Niranjan Cinema v. Prakash Chandra Dubey and Anr. 2007 AIR SCW 7654.
9. I have considered the two decisions as above relied upon by learned Advocate Mr. Japee. In the decisions as aforesaid relied upon by the learned Advocate Mr. Japee, 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.
10. In the aforesaid two decisions referred to and relied upon by the learned Advocate Mr.Japee, the apex court was not considering matter under Section 17B of the ID 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 17B of the ID 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 17B of the ID Act, 1947, therefore, while examining matter under Section 17B of the ID Act, 1947, court is not having such discretion as it has been controlled by Section 17B of the ID Act, 1947. Therefore, this Court has no discretion to deny benefit under Section 17B of the ID Act, 1947 if the workman has been satisfying the conditions incorporated in Section 17B of the ID 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.
11. 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 17B of the ID Act, 1947. Therefore, in view of peculiar facts of the present case governed by Section 17B of the ID Act, 1947, aforesaid two decisions referred to by learned Advocate Mr. Japee are not applicable to the present case.
12. This Court had an occasion to consider the question of gainful employment while examining the provisions of Section 17B of the ID Act, 1947 in case of University Granth Nirman Board v. Udesinh Togaji Solanki reported in 2003 (1) GLH 626. View taken by this Court has been confirmed by two Division Bench of this Court in case of Bhanulal Khimjibhai Solanki v. Deputy Executive Engineer reported in 2005-I- LLJ 655, & in case of Cyanides and Chemicals Company v. Mansingh Mangalram Varma reported in 2006 - II -LLJ 191 and recently it has been considered by this Court in case of M.J. Patel v. Tata Chemicals Ltd reported in 2008 I CLR 588, where it has been held that the self employment or doing miscellaneous work can not considered to be gainfully employment for denying the benefit Under Section 17B of the I. D. Act 1947. Therefore, considering the aforesaid decisions of this Court relating to Section 17B of the ID Act, 1947 confirmed and affirmed by the Division Bench of this Court in aforesaid two decisions and also in view of the fact that the employer is not able to point out that the workman has been gainfully employed in any establishment subsequent to the date of award by producing any concrete evidence, according to my opinion, the workman herein is entitled for the benefit of Section 17B of the ID Act, 1947 and in view of that, contentions raised by learned Advocate Mr. Japee on behalf of the employer are rejected and workman is entitled for such benefit Under Section 17B of the ID Act, 1947 from the date of the award 31st July 2006 during the pendency of this petition.
13. Here, it is also required to be noted that the workman is prepared to work with the petitioner provided that the petitioner is ready and willing to provide him work by reinstating him in service during the pendency of the petition. However, petitioner is not prepared till this date to do so and petitioner on one hand is enjoying fruits of stay against the award and yet not willing to pay last drawn wages to the workman. Once, stay is granted against the reinstatement, then, as per the language of Section 17B of the ID Act, 1947, it is obligatory for the employer to pay full wages last drawn by the workman but employer is not accepting it and raising contention that the workman is having his own business of construction and, therefore, not entitled for such benefit and that too not relating to the period subsequent to the date of award but for the period prior to the award 31.7.2006. So, employer is enjoying interim relief against the reinstatement but workman is not able to enjoy starvation and in such circumstances, he is requiring benefit under Section 17B of the ID Act, 1947 considering the objects thereof for enabling him to maintain himself and his family and, therefore, approach of the employer to refuse to reinstate workman on one hand and then to deny benefit of Section 17B of the ID Act, 1947 is contrary to common sense and logic and, therefore, submissions made by learned Advocate Mr. Japee cannot be accepted and same are, therefore, rejected. However, if the wisdom prevails subsequently at any time, then, it will be open for the petitioner to reinstate the workman in service without prejudice to his rights and contentions in this petition but till then, petitioner shall have to strictly comply with the mandate of Section 17B of the ID Act, 1947 in letter and spirit.
14. Therefore, in view of the above discussion, it is directed to the original petitioner opponent herein to pay full wages last drawn by the workman inclusive of maintenance allowance if any available to the workman under the service rules to the workman with effect from 31st July,2006 to 31.3.2008 within one month from the date of receipt of copy of this order and thereafter to continue to make such payment of last drawn wages to the workman regularly every month till the main matter is heard and decided by this Court finally.
15. With these observations and directions, this civil application is disposed of with no order as to costs.