Gujarat High Court
Sureshkumar Valjibhai Baraiya vs Divisional Controller & on 17 February, 2016
Author: K.M.Thaker
Bench: K.M.Thaker
C/CA/8805/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR DIRECTION) NO. 8805 of 2015
In SPECIAL CIVIL APPLICATION NO. 17717 of 2013
SURESHKUMAR VALJIBHAI BARAIYA....Applicant(s)
Versus
DIVISIONAL CONTROLLER & 1....Respondent(s)
Appearance:
MR.KRUTARTH K PANDYA, ADVOCATE for the Applicant(s) No. 1
MR DEEPAK G ALORIA, ADVOCATE for the Respondent(s) No. 1
MR PARITOSH CALLA, ADVOCATE for the Respondent(s) No. 2
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 17/02/2016
ORAL ORDER
Heard Mr. Pandya, learned advocate for the applicant, and Mr. Aloria, learned advocate for the opponent No.1.
1.1 Rule. Mr. Aloria, learned advocate, has waived service of rule for the opponent No.1. 1.2 Considering the nature of the application and at the request of learned advocate for the applicant and with consent of learned advocate for the opponent, the application is taken up for hearing and final order today.
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2. By taking out this application, the applicant i.e. original respondent in Special Civil Application No.17717 of 2013 has prayed for direction that the opponent herein i.e. original petitioner should pay last drawn wages during pendency of the petition, i.e. Special Civil Application No.17717 of 2013.
3. This application is taken out in backdrop of the fact that after the learned Labour Court, Godhra passed the award dated 15.3.2013 in Reference (LCG) No.53 of 2004 directing present opponent to reinstate the present applicant on his original post with continuity of service, without backwages, the opponent herein, upon feeling aggrieved by the said award and direction filed writ petition, which is registered as Special Civil Application No.17717 of 2013.
4. This Court [Coram: Hon'ble Mr. Justice N.V.Anjaria] considered the petition and admitted Page 2 HC-NIC Page 2 of 21 Created On Sun Feb 28 02:51:42 IST 2016 C/CA/8805/2015 ORDER the same by order dated 17.12.2013. By the said order, the Court also granted interim relief staying operation of the award. The order dated 17.12.2013 reads thus:-
"Heard learned advocate Mr. Deepak G. Aloria for the petitioner.
Rule.
The impugned judgment and award shall remain stayed during the pendency of the petition."
5. Now, the applicant i.e. original respondent has taken out present application and prayed that the opponent employer should comply the obligation under Section 17(B) and pay the last drawn wages during the pendency of the petition.
6. So as to support the said request, the applicant has averred and stated in his application that:-
"3) It is respectfully stated and submitted that in the aforesaid Special Civil Application, this Hon'ble Court has issued Rule and the impugned award is stayed during the pendency of the petition on 17.12.2013. ..... It is submitted that the present applicant is not gainfully employed in any establishment and is without any job. Also, Page 3 HC-NIC Page 3 of 21 Created On Sun Feb 28 02:51:42 IST 2016 C/CA/8805/2015 ORDER the present applicant was not reinstated pursuant to the impugned award dated 15.03.2013 passed by the Hon'ble Labour Court even before the grant of stay by this Hon'ble Court.
4) It is respectfully stated and submitted that the present applicant was not gainfully employed during the pendency of the proceedings before the Hon'ble Labour Court, in respect of the proceedings related to the aforesaid reference. It is further submitted that the present applicant may be paid full wages during pendency of proceedings before this Hon'ble Court as per the provisions of Section 17-B of the Industrial Disputes Act, 1947.
5) It is respectfully stated and submitted that full wages last drawn by the present applicant may be directed to be paid to him during the period of pendency of the present proceedings since the present applicant is not gainfully employed in any establishment.
6) It is respectfully stated and submitted that the present applicant is without any job and is on the verge of being hand to mouth and, therefore, the present applicant is filing the present application stating on oath that during pendency of the proceedings before this Hon'ble Court, the present applicant is not employed in any establishment. Hence, in the interest of substantial justice the present application may be allowed by this Hon'ble Court."
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7. The opponent - original petitioner has opposed the application by filing affidavit dated 19.9.2015.
8. Without placing any evidence on record, the opponent - original petitioner has alleged that according to his information, the applicant is earning from agriculture activity and that he owns half acre land. Relying on the decision in case of North-East Karnataka Road Transport Corporation v. M. Nagangouda [(2007) 10 SCC 765], the opponent - original petitioner has sought to contend that the applicant should be considered in gainful employment when he is earning from agriculture activity.
9. In response to the said affidavit, the applicant - original opponent has filed counter rejoinder affidavit.
Though it is not specifically mentioned in the rejoinder affidavit, learned advocate for the applicant workman stated and submitted on the Page 5 HC-NIC Page 5 of 21 Created On Sun Feb 28 02:51:42 IST 2016 C/CA/8805/2015 ORDER basis of the instructions from the applicant workman that the workman does not own half acre of land as alleged by the opponent in the reply affidavit.
10. The opponent has opposed the application on the ground that self employment, even in agriculture activity, would amount to gainful employment.
11. On this count, it is relevant to take into account observations in CAV Judgment dated 12.5.2011 in Letters Patent Appeal No.531 of 2008 wherein Hon'ble Division Bench considered the issue arising from the expression "gainful employment" employed in Section 17(B) of the Industrial Disputes Act. In the said decision, Hon'ble Division Bench observed, inter alia, that:-
"12. Now coming to the questions which arise in this appeal on the argument of the learned counsel for the parties, we take up the first question whether where the award of Labour Court granting reinstatement had been challenged and interim Page 6 HC-NIC Page 6 of 21 Created On Sun Feb 28 02:51:42 IST 2016 C/CA/8805/2015 ORDER relief had been granted by the High Court to the employer, the workman is entitled for full last drawn wages under section 17-B of the Act if the workman is carrying on business as a contractor after the award and is receiving adequate remuneration from his employment or self-employment or such workman would not be entitled for benefit of main section 17-B in view of the proviso? The facts are that the appellant has alleged that the respondent is working as a contractor. This fact has been proved by the appellant by filing evidence that the respondent had filed Regular Civil Suit No.256 of 2006 wherein he had mentioned that he was doing service as well as he was working as a contractor. The appellant had also filed evidence that during the pendency of the civil suit, the respondent had filed a complaint under section 138 of the Negotiable Instruments Act, 1881, stating therein that he was doing the business of carting agent and he had supplied some building materials to a contractor for which cheque was given to him which had been dishonored.
12.1 In his defense the respondent had been stated that the construction business was being carried by the two sons of the respondent. He explained that before the Principal Civil Judge in the column of occupation 'Naukry' had been written by typographical error. He further stated that he was not gainfully employed in any establishment nor he was getting any remuneration. He being the guardian of his children, was only advising and helping them in their business which had been established prior to his termination from service.
Page 7 HC-NIC Page 7 of 21 Created On Sun Feb 28 02:51:42 IST 2016 C/CA/8805/2015 ORDER 12.2 The respondent has not filed any material to demonstrate that the business was being carried out by his sons in their own name and he was not connected with the business and was only an adviser. No material has been filed by the respondent that the entire business was in the name of his sons. Since the respondent has withheld material evidence, therefore, adverse inference is drawn against him. During the pendency of the writ petition challenging the award, the respondent is employed and is receiving adequate remuneration. From the material on record we have come to the conclusion that the respondent was carrying on the business prior to his termination order and prior to the award of the Labour court. Even while the award of the Labour court is under challenge in this writ petition, the respondent had been working as contractor throughout and had been receiving adequate remuneration from the contract works.
12.3 The expression 'gainful employment' as defined in Black's Law Dictionary, 9th Edition, mean work that a person can pursue and perform for money.
12.4 The expression 'remuneration' has been defined in Advance Law Lexicon, 3rd Edition in a wider term than 'salary'. It means a quid pro quo, that is to say that whatever consideration a person gets for giving his service. Consequently, if a person was in receipt of a payment or of a percentage, or any kind of payment, the amount he would receive would be remuneration. In Black's Law Dictionary, 9th Edition the expression 'remuneration' has been Page 8 HC-NIC Page 8 of 21 Created On Sun Feb 28 02:51:42 IST 2016 C/CA/8805/2015 ORDER defined as payment; compensation. It also means the act of paying or compensating. In Shorter Oxford English Dictionary, 5th Edition, the expression 'remuneration' has been defined which means to make a payment or return for 'service etc.' It also means 'reward; pay (the person) for service rendered or work done.' 12.5 The proviso and section 17-B if are read in juxtaposition, it would be apparent that in the main section 17-B the expression 'employed in any establishment' had been used by the legislature whereas in the proviso the legislature had intentionally omitted the words used in the main section 'in any establishment.' Further, the legislature in its wisdom had intentionally used the expression 'such workman had been employed and had been receiving adequate remuneration' in the proviso. The language used in the statute is the determinative factor of the legislative intent. The legislature is presumed to have no mistake. The presumption is that it intended to say what it has said. In the proviso the words 'in any establishment' cannot be read after the word employed. We cannot read anything in a statutory provision which is plain and unambiguous. We do not have any power to rewrite, recast, substitute words or reframe the statutory provision under the garb of interpretation as it would amount to legislation. The legislature had in unequivocal terms, in the proviso, had carved out an exception to main section 17-B and had clearly declared, that those workmen who are employed and are receiving payment shall not be entitled for the benefit Page 9 HC-NIC Page 9 of 21 Created On Sun Feb 28 02:51:42 IST 2016 C/CA/8805/2015 ORDER conferred by the main section 17-B. It is the duty of the court to give full effect to the proviso to section 17-B of the Act. The words used in the main section 'employed in any establishment' were used in a restricted and narrow sense. Whereas the words, 'employed' and 'remuneration' had been used by the legislature, in the proviso in the wider sense.
12.6 The learned counsel for the appellant had relied on the decision of the Apex Court in North East Karnataka Road Transport Corporation v. M. Nagangouda, AIR 2007 SC 973 wherein in para-17 it had been held as under:
"17. On the said question, we are unable to accept the reasoning of the Labour Court that the income received by the respondent from agricultural pursuits could not be equated with income from gainful employment in any establishment. In our view, "gainful employment" would also include self-employment wherefrom income is generated. Income either from employment in an establishment or from self-employment merely differentiates the sources from which income is generated, the end us being the same. Since the respondent was earning some amount from his agricultural pursuits to maintain himself, the Labour Court was not justified in holding that merely because the respondent was receiving agricultural income, he could not be treated to be engaged in "gainful employment".
The learned counsel also relied on another decision of the Apex Court in Kamla Nehru Memorial Hospital v. Vinod Kumar (2006) 1 SCC 498 wherein in paragraph 8 it had been held as under:
"8. The High Court's conclusion about entitlement of the respondent under Section 17-B of the Act is relatable to non-employment Page 10 HC-NIC Page 10 of 21 Created On Sun Feb 28 02:51:42 IST 2016 C/CA/8805/2015 ORDER and non-receipt of adequate remuneration of the workman. The appellant had adduced ample material to show that the respondent was enrolled as an advocate in 1983 and was a busy practitioner with decent professional income. It had even given a list of a large number of cases in which the respondent had appeared. Without any material to support its conclusions, the High Court observed that "because of the compulsions of unemployment he has no option but to continue for a short period as a practising advocate". (underlined for emphasis). The conclusions are clearly contrary to material on record. The respondent was not entitled to any entitlement under Section 17-B of the Act. However, if any amount has already been paid in the peculiar facts of the case, the respondent shall not be liable to refund the same."
13. Learned counsel for the respondent Mr.P.H.Pathak has placed reliance on two decisions of Division Bench of this Court in Bhanulal Khimjibhai Solanki v. Deputy Executive Engineer (2004) 3 G.L.H. 375 and Cyanides and Chemicals Company v. Mansingh Mangalram Varma 2005 (3) GLR 2643 = 2006-II-LLJ 191(Guj). He urged that these decisions are applicable to the facts of the case and the Appeal filed by the appellant deserves to be dismissed.
13.1 In Bhanulal Khimjibhai Solanki v. Deputy Executive Engineer (2004) 3 G.L.H. 375 the facts before the Division were that the Labour court had directed for reinstatement of the workman along with back wages. The award was challenged in writ petition wherein ad interim relief was granted. The workman filed an application for enforcement of section 17-B. The application was contested by the employer on the ground that it was admitted by the Page 11 HC-NIC Page 11 of 21 Created On Sun Feb 28 02:51:42 IST 2016 C/CA/8805/2015 ORDER workman before the Labour court that he was self- employed and was plying auto rickshaw and was earning about Rs.1,800/- per month. The workman also owned two other auto rickshaws. He would have been entitled for last drawn wages of about Rs.630/- per month. Since he was self employed and was earning three times of the last drawn wages, he was not entitled for the benefits under section 17- B read with its proviso. The Division Bench in paragraphs 7.1 and 7.2 held as under:
"7.1 ...When a workman engages during the period of his termination in any activity of his own from which he earns his livelihood, he is not at that time "employed in any establishment".
The expression "had been employed" and "had been receiving adequate remuneration" in the later part of Section 17-B are used in the context of employment of such workman in any establishment and the remuneration received by the workman from such establishment. 7.2 When a person gainfully works without being "employed in any establishment" and earns his livelihood from his work, independent of being so employed, he does not "receive" any "remuneration" by being employed in any establishment. Thus, any earning of the workman during "such period" which are not remuneration received by the workman by being employed in any establishment, are wholly irrelevant while deciding his entitlement under Section 17-B to get full wages last drawn for "such period" i.e. the period of pendency of the proceedings in the High Court...."
13.2 In Cyanides and Chemicals Company v. Mansingh Mangalram Varma 2005 (3) GLR 2643 = 2006-II-LLJ 191(Guj) the facts before another Division Bench of this Court were that the Labour Court had directed for reinstatement of the workman. The award was challenged in writ petition wherein ad interim Page 12 HC-NIC Page 12 of 21 Created On Sun Feb 28 02:51:42 IST 2016 C/CA/8805/2015 ORDER relief was granted. The workman filed an application for enforcement of section 17-B. The application was allowed. During the pendency of the writ petition, the employer moved an application for recalling/modifying the earlier order passed under section 17-B on the ground that the employer had collected facts that the workman was gainfully employed and was engaged in fabrication and erection work and was carrying on business in the name and style of V.K.Enterprises, therefore, the workman was not entitled to any order in his favour. The Division Bench in paragraph 9, 10, 12 and 15 has held as under:
"9. ... A conjoint reading of the main Section and the proviso would make it clear that the question of self-employment would not be material for the purposed of Section 17-B of the Act. The language employed in the section says that the workman who informs the court that he had not been employed in any establishment then the wages cannot be denied....
10. ... The proviso can be made applicable only if it is proved to the satisfaction of the High Court or Supreme Court that the workman had been employed and he is receiving some/adequate remuneration for the services rendered by him. In the present matter on appellant's own saying it is clear that the respondent was not employed with any establishment but was making some earnings by doing some work.
12. ... The essential condition of a person being employed within the phrase would mean he should be employed to do the work with someone else and there should be, in other words, an employment of his by the employer and that there should be a relationship between the employer and him as between employer and employee or master and servant. Unless a person, is thus, so employed, the wages under Page 13 HC-NIC Page 13 of 21 Created On Sun Feb 28 02:51:42 IST 2016 C/CA/8805/2015 ORDER section 17-B will have to be paid.
15. We would also agree that the observations made in the judgement in the matter of University Granth Nirman Board (supra) that the words "adequate remuneration on being employed in an establishment" would mean receipt of salary or wages from an employer and what workman earns to maintain his body and soul or family doing miscellaneous work would not be coming within the sweep of "employment in an establishment."
13.3 The learned counsel for the respondent has also relied on the decision of a Single Judge in University Granth Nirman Board v. Udesinh Togaji Solanki 2003 (2) GLR 1281. This decision of the learned Single Judge had been approved by the Division Bench in Mansingh Mangalram Varma (supra). In this decision, the leaned Single Judge in para- 13 has held as under:
"13....Thus, in view of the proviso to Section 17B of the said Act, it the workman is receiving adequate remuneration by way of employment in any establishment, that is the only thing which can be taken into consideration and on that basis, relief under Section 17B can be denied to the workman concerned...."
13.4 We have gone through the two decisions of the Division Bench and the decision of learned Single Judge carefully. We find that in the aforesaid decisions the learned Division Benches and the learned Single Judge have read the word "establishment" in the proviso to section 17-B of the Act. The proviso is an exception to the main section 17-B of the Act. Law has been settled by the Apex Court that the Courts cannot rewrite, substitute, recast or reframe the legislation. Words cannot be substituted in a statute under the Page 14 HC-NIC Page 14 of 21 Created On Sun Feb 28 02:51:42 IST 2016 C/CA/8805/2015 ORDER guise of interpretation. The Court cannot add words to a statute or read words which are not there in it. Omission of words in a statute plays an important role. The legislature never wastes its words or says anything in vain. What the legislature intended to be done or not to be done, can only be legitimately ascertained from what it has chosen to enact either in express words or by necessary implication. Even if there is a defect or an omission in the statute, the Court cannot correct the defect or supply the omission. The Courts also do not have any power to legislate. Hardship or inconvenience cannot alter the meaning employed by the legislature. In cases of hardship the remedy lies with the legislature and not in the hands of the Court.
13.5 We are of the considered opinion that in view of the law settled by the Apex Court that words cannot be added or read in the proviso as the language of section 17-B and its proviso are plain and unambiguous, the decisions of the Division Bench in Bhanulal Khimjibhai Solanki v. Deputy Executive Engineer (2004) 3 G.L.H. 375 and Cyanides and Chemicals Company v. Mansingh Mangalram Varma 2005 (3) GLR 2643 = 2006-II-LLJ 191(Guj) committed a serious error in reading the word "establishment" in the proviso to section 17-B of the Act which amounts to legislation and being contrary to the aforesaid decisions of the Apex Court. The decisions by the Division Benches were rendered in ignorance of the settled law of the land with regard to interpretation of statutes, that the Courts cannot legislate, therefore, the aforesaid Page 15 HC-NIC Page 15 of 21 Created On Sun Feb 28 02:51:42 IST 2016 C/CA/8805/2015 ORDER two Division Bench decisions are held to be per incurium. The decision of the learned Single Judge in University Granth Nirman Board v. Udesinh Togaji Solanki 2003(2 ) GLR 1281 which also reads the word "establishment" in the proviso to Section 17-B is overruled."
11.1 It can be seen from the above decision that Hon'ble Division Bench has held that:-
"...Even if a workman is self employed and doing his own business or profession, from which he is receiving adequate payment or remuneration, in such a case, the workman would not be entitled for full last drawn wages under the proviso to section 17-B of the Act."
11.2 At the same time, Hon'ble Division Bench also observed and clarified that:-
"......What would be the "adequate remuneration"
for applicability of the proviso cannot be put in a straight jacket formula and it would have to be considered by the Courts in the fact situation of the case."
11.3 In present case, the applicant's request is required to be considered in light of above quoted observations by Hon'ble Division Bench and in light of the facts of present case.
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12. The opponent has, without any evidence to support its allegation, alleged that the applicant owns half acre of land and he is doing farming in the said land.
On the other hand, the applicant has, through his advocate, denied that he owns half acre of land.
12.1 In furtherance of his said submission that the applicant does not own land as alleged by the opponent, learned advocate for the applicant also relied on the decision in case of Executive Engineer v. Ayubbhai Ladharbhai [2010 (2) GLH 700] wherein Hon'ble Division Bench observed and held that in absence of necessary evidence to the satisfaction of the Court, adequate remuneration under Section 17(B) cannot be denied.
13. Even if in present case, the Court has to proceed in light of the observations in paragraph No.15 of the decision dated 12.5.2011 in Letters Page 17 HC-NIC Page 17 of 21 Created On Sun Feb 28 02:51:42 IST 2016 C/CA/8805/2015 ORDER Patent Appeal No.531 of 2008 and decide this application on the premise that the income from adequate remuneration from self employment would be justification to deny the benefit under Section 17(B), then also, in present case, at least at this stage, the request of the applicant cannot be denied in view of the fact that the opponent - original petitioner has not placed any evidence or material on record to satisfy this Court about the fact that the applicant is gainfully employed or that he is earning adequate remuneration from self employment i.e. by agriculture activity in his land or from any other source.
Any material to demonstrate that the applicant owns any parcel of land is not placed on record and when the said allegation is denied by the learned advocate for the applicant then in absence of any evidence, the allegation that the applicant owns parcel of land cannot be believed.
The opponent could have placed on record some document e.g. Form No.6 or Form No.7/12 or any Page 18 HC-NIC Page 18 of 21 Created On Sun Feb 28 02:51:42 IST 2016 C/CA/8805/2015 ORDER revenue record to demonstrate that the applicant owns land either his own or jointly with other members and earns income from the said source.
14. In absence of any evidence to establish that the applicant is gainfully employed or he is earning income from self employment even from agricultural activity, the claim made by the applicant in present application cannot be denied.
15. At the same time, in view of the observation by Hon'ble Division Bench in above mentioned decision dated 12.5.2011 in Letters Patent Appeal No.531 of 2008, the applicant's claim cannot be granted from the date of the award or even from the date of the petition.
The Hon'ble Division Bench in the said decision has held that the applicant will be entitled for payment of last drawn wages in accordance with Section 17(B) when he files the affidavit with declaration that he is not Page 19 HC-NIC Page 19 of 21 Created On Sun Feb 28 02:51:42 IST 2016 C/CA/8805/2015 ORDER gainfully employed.
In present case, the applicant filed such application and affidavit for the first time in July 2015.
Having regard to the said facts and above discussed aspects, following order is passed:-
15.1 The opponent shall pay last drawn wages to the applicant from 24.7.2015 and the opponent -
original petitioner shall continue such payment until the writ petition is finally heard and decided or any other or further order is passed. 15.2 It is clarified that it will be open to the opponent to take out appropriate application seeking modification or vacation of this order, if the opponent comes in possession of any evidence which would satisfactorily establish that the applicant is in gainful employment or is earning adequate remuneration.
With aforesaid clarification and direction, Page 20 HC-NIC Page 20 of 21 Created On Sun Feb 28 02:51:42 IST 2016 C/CA/8805/2015 ORDER present application is partly allowed and accordingly stands disposed of. Rule is made absolute to the aforesaid extent.
(K.M.THAKER, J.) kdc Page 21 HC-NIC Page 21 of 21 Created On Sun Feb 28 02:51:42 IST 2016