Gujarat High Court
Leak vs Gautambhai on 12 December, 2011
Author: K.M.Thaker
Bench: K.M.Thaker
Gujarat High Court Case Information System
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CA/7388/2011 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 7388 of 2011
In
SPECIAL
CIVIL APPLICATION No. 2424 of 2009
With
CIVIL
APPLICATION No. 9720 of 2011
In
SPECIAL
CIVIL APPLICATION No. 2424 of
2009
=================================================
LEAK
PROOF ENGINEERING WORKS - Petitioner(s)
Versus
GAUTAMBHAI
JADAVBHAI CHAUHAN - Respondent(s)
=================================================
Appearance :
MR
VICKY B MEHTA for Petitioner(s) : 1,
MR SUBRAMANIAM IYER for
Respondent(s) : 1,
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CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 12/12/2011
COMMON
ORAL ORDER
Having regard to the facts of both applications, Rule. Mr. Iyer, learned advocate waives service of notice of rule for the opponent in CA No.7388 of 2011.
2. Two Civil Applications being CA No.7388 of 2011 and CA No.9720 of 2011 [which have been preferred by the original petitioner (company) and original respondent (workmen) respectively] are interconnected. Therefore, both are heard and decided by this common order. Considering the facts of the case and consent of the learned advocate for the opponent - workman, these applications are taken up for hearing and decision today.
3. When the CA No.7388 of 2011 is called out and taken up for hearing, learned advocate for the applicant is not present. However, Mr. Iyer, learned advocate for the opponent-original respondent - workman is present.
3.1 So far as CA No.9720 of 2011 is concerned, it is preferred by the workman. When this application is called out and taken up for hearing, learned advocate for the opponent - original petitioner company is not present.
4. From the record, it transpires that the original petitioner, a company, was party to the reference proceedings being Reference (LCV) No.737 of 2002 and in the petition it had challenged the award dated 26.2.2007 passed by the Labour Court, Vadodara in the aforesaid Reference (LCV) No.737 of 2002 whereby the Labour Court granted relief of reinstatement with 50% backwages in favour of the workman.
4.1 The Court [Coram: Hon'ble Mr. Justice H.K.Rathod (as his Lordship then was)] admitted the petition vide order dated 16.3.2010 and also granted interim relief in terms of para 6(C) on condition that the petitioner shall comply with the requirements U/s.17B of the Act.
4.2 It appears that after the above referred order dated 16.3.2010 passed, the workman had taken out an application being CA No.5025 of 2010 wherein the Court [Coram: Hon'ble Mr. Justice H.K.Rathod (as his Lordship then was)] passed order dated 10.5.2010 whereby the Court directed the petitioner to pay last drawn wages to the workman w.e.f. 26.2.2007 within 1 months and continue to pay the last drawn wages regularly until the petition is finally decided.
5. It appears that the original petitioner felt aggrieved by the said order dated 10.5.2010 and preferred an appeal being LPA No.2142 of 2010 against the said order.
5.1 It further appears that during the hearing of the appeal, the appellant
- petitioner company submitted before the Court that the company would prefer to engage / reinstate the workman instead of paying wages under Section 17B of the Act, however, such reinstatement would be possible at some other plant of the appellant company.
5.2 The Hon'ble Division Bench, after considering the aspects involved in the appeal and the submissions of the contesting parties, disposed of the appeal vide order dated 10.1.2010, inter alia, observing thus:-
"The learned counsel for the appellant further contended that the appellant is ready to reinstate the respondent workman at Banaskantha unit and, therefore, this Court may interfere with the order passed by the learned Single Judge.
We find that such an aspect can be brought to the notice of the learned Single Judge by appropriate application and it will be a new aspect to be considered by the learned Single Judge but such cannot be a ground for interference with the order of the learned Single Judge.
Suffice it to observe that if such an application is made, the learned Single Judge shall, after hearing both the sides, consider it in accordance with law.
Hence, subject to the aforesaid observations, the present Letters Patent Appeal is dismissed. In view of the order passed in the Letters Patent Appeal, Civil Application would not survive and shall stand disposed of accordingly."
6. It is in pursuance of the said order that the applicant - respondent workman has preferred CA No.9720 of 2011 wherein the applicant has prayed for below mentioned relief:-
"8(A) That the Hon'ble Court be pleased to direct the opponent to pay the wages as required to be paid under Section 17-B of the Industrial Disputes Act from the date of the award passed by the Labour Court and continue to pay the same regularly on month to month basis.
(B) Alternatively, the Hon'ble Court be pleased to direct the opponent to reinstate the applicant workman either at Vadodara until or at Banaskantha unit and pay all the unpaid wages and consequential benefits."
6.1 On the other hand, the original petitioner - company has preferred Civil Application No.7388 of 2011 seeking below mentioned relief:-
"8(a) Your Lordships may be pleased to pass appropriate order directing the opponent - workman to be reinstated at the unit situated at Taluka Vadgam, District Banaskantha."
7. When the applications are taken up for hearing, Mr. Iyer has submitted that the respondent workman is ready and willing to report for work at the unit of the petitioner company situate at Taluka Vadgam, District Banaskantha.
7.1 Actually, he actually made grievance that though the workman has already moved an application seeking such direction, the petitioner employer has neither filed affidavit in connection with the application nor taken any action to reinstate the workman.
7.2 At this stage of the order, Mr. Mehta, learned advocate for the applicant company in CA No.7388 of 2011 has appeared and submitted that now the company intends to offer work to the respondent workman and if the respondent workman is ready to report for work at the unit situate at Taluka Vadgam, District Banaskantha, then, the applicant company would offer him work at the said unit.
8. In view of the aforesaid submissions and stipulations made by the learned advocate for the company and learned advocate for the workman, it is directed that the workman shall, without prejudice to any of his rights and contentions involved in the SCA No.2424 of 2009, report for duty at the applicant - company's unit situate at Taluka Vadgam, District Banaskantha w.e.f. 19.12.2011 and the company shall, without prejudice to any of its rights and contentions involved in the petition being SCA No.2424 of 2009, offer the workman duty and shall take him on duty on the same post on which the workman was originally working and without any change in any of the service conditions. From the date on which the workman is allowed to join duty, the workman shall be paid regular wages (and not the last drawn wages which are payable under Section 17B of the Act) as are payable to the other workmen performing their duties of similar nature.
9. So far as the wages to be paid in compliance with the order requiring payment in accordance with Section 17B of the Act is concerned, if the said wages are not paid for any period and such unpaid wages are required to be paid to comply previous order, then, the same shall be paid at the earliest. Mr. Mehta has, for the said purpose, requested for time until 10.1.2012. The payment shall be made on or before 10.1.2012.
With the aforesaid observations, clarification and direction, present applications stand disposed of. Rule is made absolute accordingly in each application.
[K.M.Thaker, J.] kdc Top