Gujarat High Court
Automotive Stamping And Assambly Ltd vs Akhil Gujarat General Mazdoor Sangh on 8 March, 2019
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/10682/2015 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 10682 of 2015
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AUTOMOTIVE STAMPING AND ASSAMBLY LTD Versus AKHIL GUJARAT GENERAL MAZDOOR SANGH ========================================================== Appearance:
MR K.M. PATEL, SENIOR COUNSEL WITH MR.VARUN K.PATEL for the PETITIONER(s) No. MR AK CLERK for the RESPONDENT(s) No. ========================================================== CORAM: HONOURABLE MR.JUSTICE K.M.THAKER Date : 08/03/2019 IA ORDER
1. Heard Mr.K.M. Patel, learned senior counsel with Mr.V.K. Patel, learned advocate for the applicant and Mr.A.K. Clerk, learned advocate for the respondent.
2. The applicant is the original petitioner in Special Civil Application No.10682 of 2015.
3. In the said Special Civil Application No.10682 of 2015, present applicant (original petitioner) challenged award dated 13.3.2015 passed by the learned Industrial Tribunal at 1 Downloaded on : Sat Jul 27 01:53:05 IST 2019 C/SCA/10682/2015 IA ORDER Vadodara whereby the learned Tribunal directed first party No.1, first party No.2 and first party No.3 to reinstate the concerned claimants / workmen on their original post on same terms and conditions on which they were working prior to termination. By the said award, the learned Tribunal clarified that if the first party No.1 and/or first party No.2 fail to comply the directions, then, first party No.3 shall be obliged to comply the award. The learned Tribunal further clarified that the direction shall be subject to final decision in Reference (IT) No.127 of 2007. Feeling aggrieved by the said award and direction, the petitioners filed captioned petition.
4. After hearing the parties, this Court passed order dated 25.4.2018 whereby the Court admitted the petition. So far as the interim relief is concerned, the Court passed below quoted order:
"11. In view of rival contentions as well as facts and circumstances of the case and the observations and findings recorded by learned Tribunal and the directions issued by learned Tribunal,following order is passed in respect of all the three captioned petitions.2 Downloaded on : Sat Jul 27 01:53:05 IST 2019
C/SCA/10682/2015 IA ORDER [a] RULE.
[b] By way of interim relief, the implementation and operation of the impugned award is stayed on the condition that the petitioners shall, during pendency of the petitions, comply the condition and requirement prescribed under Section 17B of the ID Act and the claimants (concerned workmen) would be entitled for payment of last drawn wages in accordance with said provision.
12. The petitioner in Special Civil Application No.13512 of 2015 - i.e. M/s. Riya Enterprises would submit at this stage that the said petitioners are ready to offer work to the claimants at other establishment/other location.
12.1 The said submission and offer is diagonally and diametrically opposite and contrary to the direction passed by the learned Tribunal in impugned award. Besides this, any specific offer with exact details is not placed on record.
12.2 With regard to said offer, learned counsel for the concerned workmen would submit that if any order to said effect is granted, then, in light of peculiar facts of present case, it would amount to allowing Special Civil Application Nos.13511 of 2015 and 13512 of 2015 and it would also amount to setting aside, at interim stage, final direction passed by learned Tribunal whereby the petitioners are directed to reinstate the claimants at the same place and with same service conditions which existed before the date of dispute.
12.3 At this stage, it is relevant to note that before this Court, the offer to provide work at other establishment is made by one one of the original opponents i.e. by M/s. Riya Enterprises. So far as the original opponent No.1 i.e. M/s. Krupalu Enterprises is concerned, it is declared by learned advocate (who entered appearance for said M/s. Krupalu Enterprises as well as by learned Senior Counsel for M/s. Automotive Stamping & Assambly Ltd. as well as M/s. Riya Enterprises) that similar offer is not made by M/s. Krupalu Enterprises. Similar offer is also not made by M/s. Automotive Stamping & Assambly Ltd. Said M/s. Automotive Stamping & Assambly Ltd. tried to wriggle out from offering work to the claimants on the ground that it does not have sufficient work. However, the said fact is vehemently opposed by learned counsel for the concerned workmen on the premise that no evidence to that effect was ever placed before the learned Labour Court and any cogent evidence to support such claim is not available on record of the petitions and that actually, the said company is, according to information with the concerned claimants, running its activities in three shifts and it avoids employing the workmen on regular and permanent basis and prefers to run its activities by engaging contractors. Be that as it may, at this stage, when such offer is made by only one of the three opponents before the learned Labour Court, then, it would not, prima facie, envelope all the claimants. Further, it may also amount to recognizing existence of condition or authority with original opponents (namely authority to transfer employees from one place to another or from one establishment to other) and it may also amount to recognizing existence of such condition which, as such, is not established in view of absence of appointment orders.
13. Besides above mentioned aspects, it is also appropriate and necessary to consider that the submissions by learned counsel for both sides are, at this stage, premature and not required to be considered at this stage because the issue or apprehension which are voiced by both sides at this stage would actually arise at the time when the claimants file affidavit 3 Downloaded on : Sat Jul 27 01:53:05 IST 2019 C/SCA/10682/2015 IA ORDER declaring that he is / they are not gainfully employed. At that stage and in response to such affidavit, the employer may come forward with appropriate alternative offer, if he/they so desire. Further, since such suggestion is not made by M/s. Riya Enterprises it is, even otherwise, not possible to identify the persons for whom specific and definite offer is made.
13.1 At this stage, it is not necessary to preempt the said issue. Suffice it to say that the condition prescribed under Section 17B is a statutory obligation. The said obligation comes in operation on its own force in view of the language of the provision which obliges employer to pay last drawn wages "during pendency of the proceedings before the High Court or Supreme Court" and without express direction by the Court (while admitting the petition and while granting interim relief). The said provision, at the same time, impose obligation on the concerned workmen to declare on affidavit that he is not gainfully employed which is evident from the provision under Section 17B which prescribes, inter alia, that "an affidavit by such workman had been filed to that effect in such Court".
13.2 Therefore, the issue or apprehension which are expressed by both sides at this stage with regard to compliance of condition prescribed by Section 17B can be considered at the time when the workmen file affidavit and the employer respond to the said affidavit/make any specific and definite offer with specific detail to each workmen individually. 13.3 At this stage, any other or further direction or clarification is not warranted except reiterating the statutory obligation viz. that the employer is obliged to comply the condition prescribed under Section 17B, during pendency of these petitions and during operation of the interim relief."
5. From the order dated 25.9.2018, it emerges that the Court directed that party Nos.1, 2 and 3 of the first party in the reference proceedings before the learned Tribunal shall comply the condition and requirement prescribed by Section 17B of the Industrial Disputes Act.
6. Differently put, the directions by the Court vide order dated 25.4.2018 in Special Civil Application No.10682 of 2015 and connected 4 Downloaded on : Sat Jul 27 01:53:05 IST 2019 C/SCA/10682/2015 IA ORDER petitions (i.e. Special Civil Application No.13511 of 2015 and Special Civil Application No.13512 of 2015), the Court merely directed the petitioners to comply statutory condition and requirement viz. the condition prescribed by the legislature by means of Section 17B of the Industrial Disputes Act. When the writ petition against the award (directing the reinstatement of workman) is pending before High Court, the said Section 17B comes into operation on its own force in light of the mandate by the legislature under the said provision. This Court merely reiterated that the petitioners are obliged to comply the said statutory condition.
7. The said order was carried in appeal before Hon'ble Division Bench by means of Letters Patent Appeal No.966 of 2018. Hon'ble Division Bench disposed of the said Letters Patent Appeal vide order dated 25.9.2018. The relevant part of the said order reads thus:
"2. Mr. K. M. Patel, Senior Advocate, learned counsel with Mr. Varun Patel, learned advocate for the appellant inter alia, invited the attention of the court to paragraphs 12.1 to 12.3 5 Downloaded on : Sat Jul 27 01:53:05 IST 2019 C/SCA/10682/2015 IA ORDER of the impugned order passed by the learned Single Judge, to submit that though the learned Single Judge has held that the stage with regard to compliance of condition prescribed by section 17 of the ID Act has not yet arisen, the said observations made in paragraphs 12.1 to 12.3 of the impugned order would come in the way of the appellant at the time when the stage as referred to in paragraph 13 of the impugned order comes."
8. It can be seen from the order that when Hon'ble Division Bench considered the challenge against the said direction dated 29.4.2018, the appeal came to be disposed of by Hon'ble Division Bench with following observations:
"9. Subject to the aforesaid observations, since the order passed by the learned Single Judge is merely for compliance of the provisions of section 17B of the Industrial Disputes Act, 1947, at this stage, no further orders are required to be passed. The letters patent appeal is, accordingly, disposed of."
9. Hon'ble Division Bench also observed that the direction vide order dated 29.4.2018 is merely direction to comply the condition under Section 17B.
10. Now, the applicant has taken out present application and prayed that:
"(8)(A) Be pleased to hold that the applicant is not required to comply with the provisions of Section 17B of the I.D. Act;"
11. The applicant - petitioner claims further direction viz. that the applicant is, now, not obliged to comply the condition viz. Section 17B 6 Downloaded on : Sat Jul 27 01:53:05 IST 2019 C/SCA/10682/2015 IA ORDER of the Industrial Disputes Act.
12. In paragraph No.5 of the application, the applicant has averred and stated that:
"The applicant herein is filing present application seeking appropriate directions to hold that the applicant is not required to comply with the provisions of Section 17B of the I.D. Act, on the grounds raised hereinbelow:"
13. It appears that the said relief is prayed for on the ground that now the petitioners have, in their possession, some material which, according to the petitioners, demonstrates that the concerned claimants / workmen are gainfully employed.
14. According to the applicant, since the concerned claimants / workmen are gainfully employed, there is no need to comply the condition under Section 17B of the Industrial Disputes Act. On this count, the applicant has averred and stated that:
"(5) It is submitted that during the pendency of the aforesaid LPA no.966 of 2018, the group of employees (131) have filed their individual affidavits (received by the advocate of the applicant on 24.09.2018) stating on oath that they are not gainfully employed in any establishment after the award dated 13.09.2015 and they are entitled to get last drawn wages as per the provisions of Section 17B of the I.D. Act.
(6) It is submitted that the applicant company is not the employer of the concerned workmen who have filed the affidavits u/s. 17B of the I.D. Act and in whose favour the said award 7 Downloaded on : Sat Jul 27 01:53:05 IST 2019 C/SCA/10682/2015 IA ORDER dated 13.13.2015 is made. It is further submitted that the "employer" of the concerned workmen is either the respondent no.2 or 3 contractors, who have not only during the pendency of reference before the industrial tribunal but also pending the aforesaid petition and by way of separate applications (filed after receiving the affidavits of workmen as per Section 17B), offered the alternate employment at the places where they are having contracts. It is therefore, submitted that in view of above, the applicant company is not liable to comply with the provisions of Section 17B of the I.D. Act qua all the concerned workmen who have filed their affidavits of unemployment."
15. In light of the said averments in the application and the relief prayed for by the applicant, it becomes clear that in light of certain material which has come into the hands of the applicant, the applicant seeks further direction. The request by the applicant is, allegedly, based some affidavit by the workman and some other material.
16. In this context, it is appropriate to note that the said Section 17B itself provides the circumstances in which the last drawn wages are to be paid to the workman and the circumstances in which the employer may be relieved of the said obligation.
17. Further, when the Court passed order dated 29.4.2018 in Special Civil Application No.10682 of 2015 and connected petitions, the Court merely 8 Downloaded on : Sat Jul 27 01:53:05 IST 2019 C/SCA/10682/2015 IA ORDER directed that the petitioner should comply Section 17B in totality i.e. the obligation and the liberty.
18. The said provision is composite and complete provision and it provides the circumstances in which the employee would be relieved from the obligation / may not be obliged to continue to pay wages.
19. If, according to the applicant, in view of the material available with it, it is not necessary to comply the said direction and on that basis, the applicant seeks any direction / order, then it amounts to fresh cause for appropriate orders / directions.
20. The order dated 29.4.2018 passed by the Court is composite order and it does not call for or it does not warrant any review and/or modification since all that the Court directed the applicant to do is 'to comply the condition'.
21. In light of what is stated in the 9 Downloaded on : Sat Jul 27 01:53:05 IST 2019 C/SCA/10682/2015 IA ORDER application, the order does not call for or does not warrant review of the direction 'to comply the provisions under Section 17B'.
22. Even Hon'ble Division Bench observed in the order that the direction vide order dated 29.4.2018 is merely direction to comply statutory condition.
23. Under the circumstances, there is no justification or cause or any basis to review the order.
24. Further, any modification in the order is also not required inasmuch as the direction in the order dated 29.4.2018 merely requires the direction to comply statutory condition.
25. If, however, any additional or new cause has arisen and on that count, if the applicant - petitioner requires or seeks any order from the Court, then it would amount to fresh cause and fresh - further order for that purpose and not review or modification of order dated 29.4.2018. 10 Downloaded on : Sat Jul 27 01:53:05 IST 2019
C/SCA/10682/2015 IA ORDER For such purpose the application needs to be
submitted and presented before the Court where the petition, i.e. Special Civil Application No.10682 of 2015 (and other cognate matters) is assigned as per the roster.
26. In view of roster, this Court has no authority or jurisdiction to pass further directions / further orders in light of the reason / ground on which the order is prayed for by the applicant.
27. In light of the order which the applicant seeks and in light of the roster it is for the applicant to appropriate fresh application or to request the office to place present application before Hon'ble Court.
28. Any order in respect of the request made by the applicant in present application is not required to be and/or cannot be passed by this Court.
29. The application is, therefore, returned to 11 Downloaded on : Sat Jul 27 01:53:05 IST 2019 C/SCA/10682/2015 IA ORDER the applicant - Registry. The applicant may either approach the office with appropriate request or the Registry may take necessary and appropriate action in light of the foregoing observations. Orders accordingly.
(K.M.THAKER, J) Bharat 12 Downloaded on : Sat Jul 27 01:53:05 IST 2019