Gujarat High Court
Maniben vs Gujarat on 10 August, 2009
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
CA/5266/2008 9/ 9 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION No. 5266 of 2008 In SPECIAL CIVIL APPLICATION No. 10772 of 2002 To CIVIL APPLICATION No. 5275 of 2008 In SPECIAL CIVIL APPLICATION No. 10772 of 2002 ====================================== MANIBEN MAGANBHAI GAMIT C/O. BIJLI MAZDOOR PANCHAYAT, - Petitioner(s) Versus GUJARAT STATE ELECTRICITY CORPN LTD - Respondent(s) ====================================== Appearance : MRS SANGEETA N PAHWA for Petitioner(s) : 1, DS AFF.NOT FILED (N) for Respondent(s) : 1, SR. ADVOCATE MR MD PANDYA for Respondent(s) : 1, ====================================== CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 10/08/2009 COMMON ORAL ORDER
1. Heard Ms. Sangeeta N.Pahwa, learned advocate for the applicants- workmen, respondent-Bijlee Mazdoor Panchayat in Special Civil Application No.10772 of 2002 and Shri M.D.Pandya, learned senior advocate for respondent-employer,the petitioner in Special Civil Application No. 10772 of 2002.
2. All these Civil Applications arise out of pending proceedings being Special Civil Application No. 10772 of 2002 in which relief of seeking appropriate writ, order or direction for receiving last drawn wages is made. They were heard together and are being disposed of by this common oral order.
3. The facts in brief deserve to be set out as under:-
3.1 The petitioner employer in Special Civil Application No. 10772 of 2002 (hereinafter referred to as the employer for the sake for brevity) had to file writ petition challenging the award dated 30.6.2001 passed in Reference(I.T.)No.11 of 1996 as the Industrial Tribunal allowed the reference and issued directions to give work to the present workmen considering them to be employees of the Board and accorded all the benefits flowing therefrom with cost of Rs.5000/-.
In this writ petition being Special Civil Application No.10772 of 2002, after hearing learned advocates for the respective parties, this Court (Coram: Ravi R. Tripathi, J.) on 21.10.2002 passed the following order:-
Rule.
To be heard with Special Civil Application No.11002 of 1995. Ad- interim relief in terms of paragraph-7(C).
3.2 It is required to be noted at this stage that the workmen who were second party before the Industrial Tribunal in Reference(I.T.) No.11 of 1996 have also filed writ petition being Special Civil Application No. 11002 of 1995, the prayers thereof are set out as under:-
(A) Declaring that Respondents No.1 to 6 should obtain prior permission under Section 25N of the I.D. Act and are also required to display the Seniority List under Rule 81 of Gujarat Rules and also that the retrenchment compensation is required to be paid before removing any of the workers from service and further declaring that the terminations of the workers on 1.7.95, 8.7.95 and 23.11.95 were absolutely illegal, null and void and directing the Respondents No.1 and 2 to reinstate these workers in service with full continuity and arrears of wages within a week;
(B) Declaring that the judgment of Supreme Court is required to be implemented immediately and directing the Resp. to include all the workers engaged through the device of Labour Contractor at Ukai for the purpose of absorption and further directing the Respondent Board to prepare a seniority list of all the workers based on their first date of entry in service and absorb the workers whose juniors are retained are required to be absorbed from one reason or another.
3.3 Thus in the aforesaid petition, being Special Civil Application No. 11002 of 1995, the precise prayer for direction with regard to reinstatement and declaration with regard to illegal termination is made. When this matter was pending, the aforesaid reference being Reference (I.T.) No.11 of 1996 came to be referred to the Tribunal, wherein also the workmen sought relief of reinstatement with permanency in service and full backwages. It is to be noted that this reference is allowed vide order and award dated 30.6.2001 whereas the petition containing the prayer for reinstatement and relief seeking declaration of illegal termination is still pending in Special Civil Application No.11002 of 1995. Therefore, the Industrial Tribunal, while dealing with the question of maintainability of the reference in the light of the pendency of Special Civil Application No.11002 of 1995, observed that the subject matter of two proceedings are different and the prayer for reinstatement is subject matter of Special Civil Application No. 11002 of 1995. Accordingly, the Tribunal had to couch the relief and direction in the reference and, therefore, the Tribunal did not use the words reinstatement and gave relief as mentioned in the award. The bipartite hearing qua admission of the matter was over and the order granting interim relief was passed on 21.10.2002 by this Court. Thereafter, no proceedings were taken up by the workmen seeking any relief or direction with regard to the reinstatement and/or last drawn wages under the provisions of Section 17B of the I.D. Act. Only in the year 2008, these Civil Applications were taken out for seeking relief of last drawn wages under Section 17B of the I.D. Act. The employer has resisted this claim by filing affidavit-in-reply wherein the contention is taken that order impugned which is under challenge in Special Civil Application No. 10772 of 2002 cannot be said to be an order of reinstatement which would entitle the workmen to seek last drawn wages under Section 17B of the I.D. Act. Hence these Civil Applications.
4. Ms.Pahwa, learned advocate representing the workmen contended that the relief granted by the Industrial Tribunal though in terms, may not have referred to word reinstatement but the effect thereof is clearly of reinstatement. Therefore, the workmen are entitled to receive last drawn wages under Section 17B of the Industrial Disputes Act,1947 from the date when the petition was filed. Ms.Pahwa further submitted that the order impugned in Special Civil Application No. 10772 of 2002 cannot be interpreted in any other manner by the employer but it is required to be interpreted as if it was an order of reinstatement with the relief mentioned thereunder. Therefore, any proceedings filed by the employer would make it incumbent upon the employer to comply with Section 17B of the Industrial Disputes Act,1947. Ms.Pahwa further submitted that the pendency of Special Civil Application No. 11002 of 1995 wherein the prayer of reinstatement is made and which is yet not been granted cannot come in the way of the workmen for receiving last drawn wages under Section 17B of the I.D. Act. Ms.Pahwa submitted that though the prayer of reinstatement and challenge to the termination is there in Special Civil Application No.11002 of 1995 but that in itself cannot be of any help to the employer in denying the last drawn wages as the order which is subject matter of challenge is capable of being construed as order of reinstatement only. Therefore, the workmen deserve to be given last drawn wages as they are entitled under Section 17B of the I.D. Act. Ms.Pahwa inviting the Court's attention to the definition of reinstatement as provided in the Law Lexicon( Second Edition 1997) submitted that the word reinstatement means to put back into job. The reinstatement can only arise if a man is dismissed or removed from service or if otherwise his service has been terminated and is being brought back into the service. In the instant case, the wording in the order of the Tribunal which is subject matter of challenge in the main matter has only one construction permissible and i.e. reinstatement with the relief granted thereunder. Ms. Pahwa relying upon para 26 of the judgment in the decision of this Court in the case of Kanjibhai Punjabhai Parmar vs. State of Gujarat reported in 2005(1) G.L.H 209, contended that the delay, if not shown to be prejudicial to the employer, cannot be a ground on it's own strength for denying benefit of wages under Section 17B of the I.D. Act.
5. Shri M.D.Pandya, learned senior advocate for the employer relying upon the affidavit contended that the order in question cannot be construed to be an order of reinstatement so as to entitle the workmen for receiving the last drawn wages under Section 17 of the I.D. Act. He further submitted that the order itself was subject matter of scrutiny at the time of deciding the matter with respect to its admission. The matter is admitted after hearing both the advocates of the respective parties and the Court has granted interim relief staying the entire award. At that time, neither was there any resistance on such order being passed nor was there any plea with regard to making the same subject to Section 17B of the I.D. Act. Hence, now, in the year 2008 the workmen cannot be permitted, for the first time, to agitate the non-granting of benefits of Section 17B of the I.D. Act as it is otherwise amounting to reviewing of the order. Mr.Pandya has further submitted that this submission is required to be made as the applicants are absolutely silent with regard to time taken in filing the present applications. The proceedings are pending since the year 2002 and bipartite order staying the operation is also on the record since 2002. Yet, for the first time in the year 2008, without showing any justifiable cause for not approaching the Court, the workmen, for the first time, approached the Court after having accepted the interim order as it is. The applications are not containing any specific challenge or relief qua reinstatement as the relief of reinstatement could not have been granted naturally because the Tribunal, while deciding the matter, also had dealt with this question and come to the conscious conclusion that the reinstatement and relief of reinstatement being subject matter of Special Civil Application No. 11002 of 1995, the workmen applicants have no right to seek in the year 2008, the relief of last drawn wages. Mr.Pandya further submitted that in answer to the submission with regard to the decision of this Court in the case of Kanjibhai Punjabhai Parmar (Supra), the prejudice in this case is thus that the workmen have belatedly raised plea for seeking wages in terms of Section 17B of the I.D. Act and therefore, now at this stage, it would be absolutely difficult on the part of the employer to verify the veracity of their claim of being unemployed. Even otherwise also the workmen have been in a position to sustain themselves for all these years, which would go to show that the workmen were actually not entitled to claim the relief under Section 17B of the I.D. Act. Mr. Pandya has further submitted that Section 17B of the I.D. Act does not give absolute right to the workmen to receive the wages. It is subject to the order passed by this Court after appreciating the facts and circumstances of the case.
6. This Court is of the view that it is not simple case where there is a straight direction with regard to reinstatement but the same is subject matter of challenge before this Court and no Court can afford to miss sight of the fact that the workmen have themselves preferred writ petition which was, earlier in point of time, filed by way of Special Civil Application No.11002 of 1995 which is pending before the Court and where the prayers to the effect of reinstatement have been specifically prayed for.
7. The Industrial Tribunal has also been conscious about the pendency of the petition pertaining to the prayer with regard to reinstatement. Therefore, the Industrial Tribunal, by giving relief to the limited extent, has observed that the work be given but did not order reinstatement. In terms, though an attempt could be made to construe the order into that of order of reinstatement but when there was specific decision and finding of the Industrial Tribunal on the aspect that the claim of reinstatement is very much alive and pending before the High Court, it would naturally not venture into passing an order of reinstatement as the petition being Special Civil Application No. 11002 of 1995 is still pending before this Court as on date. The Industrial Tribunal, therefore, was required to couch its relief in appropriate manner keeping in mind the terms of reference. The Industrial Tribunal, therefore, avoided the usage of the word reinstatement and granted relief to say that the workmen be given work.
8. The Court is at pains to observe that in a zeal of giving some relief, the Tribunal has not appreciated the fact that the order was that of giving work without granting relief of reinstatement. The question would arise as to whether the same order can be said to be an order of reinstatement when the Industrial Tribunal itself has not considered the question of reinstatement. Therefore, in my view, as the order of reinstatement was not there, there is no question of considering the granting of benefits under Section17B of the I.D. Act to the workmen and when the bipartite order has not been subject matter of challenge in any Court and as the workmen have not moved this Court on earlier occasions, then the facts and circumstances in its totality go to show that the granting of Section 17B wages, at this stage, on the strength of the order which lacks specific direction of reinstatement, would amount to giving undue advantage to the workmen which is not warranted and, therefore, the Civil Applications deserve to be dismissed and they are accordingly dismissed. No order as to costs.
(S.R.Brahmbhatt, J.) sudhir