Gujarat High Court
Dharmendrakumar Kalidas Panchal vs Aditya Birla N.G.K Insulators Ltd on 1 April, 2016
Author: K.M.Thaker
Bench: K.M.Thaker
C/CA/2372/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR DIRECTION) NO. 2372 of 2016
In SPECIAL CIVIL APPLICATION NO. 10418 of 2012
DHARMENDRAKUMAR KALIDAS PANCHAL....Applicant(s)
Versus
ADITYA BIRLA N.G.K INSULATORS LTD....Respondent(s)
Appearance:
MR MS MANSURI, ADVOCATE for the Applicant(s) No. 1
MR.VARUN K.PATEL, ADVOCATE for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 01/04/2016
ORAL ORDER
1. This application was listed for hearing yesterday i.e. on 31.3.2016. When the Court heard Mr. Mansuri, learned advocate for the applicant and Mr. K.M. Patel, learned Senior Counsel with Mr. V.K. Patel, learned advocate for the opponent.
1.1 The hearing of the application was concluded however, due to paucity of time the order could not be completed. Therefore, the proceedings of this application came to be adjourned to today for dictation of order.
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2. In this application the applicant has prayed, inter alia, that:-
"8(B) Be pleased to direct the opponent original petitioner company management to pay my full wages w.e.f. 01/10/2015 every month until the Sp. Civil Application No. 10418 of 2012 is finally decided."
3. The applicant has claimed that the said relief is prayed for in light of the order dated 11.12.2012 passed by the Court (Coram: Hon'ble Mr. Justice K.S. Jhaveri) in Special Civil Application No. 10418 of 2012.
3.1 Therefore it is necessary to take into account the said order dated 11.12.2012. The said order reads thus:-
"RULE. Pending final disposal of this petition, the order of the Industrial Tribunal, Vadodara dated 2.6.2012 passed in Misc. Application (IT) No. 6 of 2011 and judgment and award dated 15.3.2011 passed in complaint (IT) No. 4 of 2007 shall remain stayed on condition that petitioner shall comply the provisions of Section 17-B of the I.D. Act."
4. The applicant herein is the original respondent in Special Civil Application No.10418 of 2012 which is filed by present opponent.
Page 2 HC-NIC Page 2 of 11 Created On Thu Apr 07 00:08:51 IST 2016 C/CA/2372/2016 ORDER 4.1 In the said petition i.e. Special Civil Application No.10418 of 2012 present opponent has challenged the award dated 2.6.2012 passed by learned Industrial Tribunal in Miscellaneous Application (IT) No.6/2011 in Complaint (IT) No. 4 of 2007 and has also challenged the order dated 15.03.2011 passed by learned Industrial Tribunal in Complaint (IT) No. 4 of 2007 in Reference (IT) No. 48 of 2004 whereby the learned Industrial Tribunal rejected the said Miscellaneous Application No. 6 of 2011 and allowed the Complaint No. 4 of 2007 respectively. 4.2 The Court considered the petition and admitted the petition vide order dated 11.12.2012.
4.3 So far as interim relief is concerned the petitioner prayed in the petition, that the implementation and operation of the said two orders may be stayed.
Page 3 HC-NIC Page 3 of 11 Created On Thu Apr 07 00:08:51 IST 2016 C/CA/2372/2016 ORDER 4.4 The Court considered the request for interim relief and by the said order dated 11.12.2012 stayed the implementation and operation of the impugned orders on the condition that the petitioner shall comply the provisions under Section 17B of the Industrial Disputes Act, 1947 (hereinafter referred to as the "I.D. Act"). 4.5 Thus, the order granting interim relief is conditional order.
4.6 Consequently the interim relief would operate only if the condition is complied and if condition is not complied or if the said order is observed in breach then interim relief would not survive / operate.
4.7 It appears that the applicant at the relevant time (i.e. when the above referred order dated 11.12.2012 was passed) was gainfully employed and Page 4 HC-NIC Page 4 of 11 Created On Thu Apr 07 00:08:51 IST 2016 C/CA/2372/2016 ORDER that therefore the applicant had not filed affidavit declaring that he is not gainfully employed. He also did not file application seeking payment of last drawn wages in view of the order and / or in accordance with Section 17B of the I.D. Act. Thus, the obligation to make the payment of last drawn wages in compliance of the order dated 11.12.2012 or under Section 17B of the I.D. Act did not commence.
4.8 Now, in present application, the applicant has averred and stated that:
"(03) The applicant states that after the termination of my service I was employed by Modern Insulator Limited, Abu Road, Rajasthan and worked their upto 01/10/2015 but on dated 01/10/2015 the said employer has issued a letter under which they has terminated my services without giving any reasons.
(04) The applicant most respectfully say and submit that he is now unemployed w.e.f. 01/10/2015 and not gainfully employed in any establishment after 01/10/2015."
5. Of course, the applicant has not mentioned the date from which the applicant was employed by said Modern Insulator Limited, Abu Road, however from the fact that after 11.12.2012 (when the Page 5 HC-NIC Page 5 of 11 Created On Thu Apr 07 00:08:51 IST 2016 C/CA/2372/2016 ORDER Court passed conditional order granting interim order), the applicant never came forward with the affidavit and any application seeking payment of last drawn wages and in accordance with section 17B of the I.D. Act it appears that at the time when the said order dated 11.12.2012 was passed, the applicant was in gainful employment. In any case, since the requisite affidavit was not filed the obligation did not commence.
6. Now, on the statement that his service is terminated by said Modern Insulator Limited with effect from 1.10.2015, the applicant has taken out present application.
7. From the record, it appears that the application is filed in the Registry on or around 3.3.2016 and it was listed before the Court for the first time on 18.3.2016.
7.1 Even from the appearance note filed by the Page 6 HC-NIC Page 6 of 11 Created On Thu Apr 07 00:08:51 IST 2016 C/CA/2372/2016 ORDER learned advocate for the applicant it appears that the application was filed on or around 3.3.2016. The advance copy of the application also appears to have been served to the learned advocate for the respondent on 3.3.2016.
8. Having regard to the order dated 11.12.2012, the applicant herein is entitled for payment of last drawn wages in view of section 17B of the I.D. Act.
9. As held by Hon'ble Division Bench by order dated 12.5.2011 in Letters Patent Appeal No.531 of 2008, obligation to pay last drawn wages in view of section 17B of the I.D. Act would arise from the date when the affidavit containing declaration that the applicant is not gainfully engaged, is filed.
9.1 As mentioned earlier, the application with supporting affidavit appears to have been filed Page 7 HC-NIC Page 7 of 11 Created On Thu Apr 07 00:08:51 IST 2016 C/CA/2372/2016 ORDER on 3.3.2016.
9.2 In the application the applicant has declared that now he is not gainfully employed. 9.3 Under the circumstances, the opponent is under legal obligation to pay last drawn wages in view of section 17B of the I.D. Act, with effect from 3.3.2016.
10. In this application, the applicant has also prayed that in light of the order dated 11.12.2012 he should be paid full wages with effect from 1.10.2015.
10.1 The provision under section 17B of the I.D. Act prescribes payment of last drawn wages. 10.2 Any exceptional circumstances or facts which would justify the direction for payment of wages at rate higher than what is contemplated by Page 8 HC-NIC Page 8 of 11 Created On Thu Apr 07 00:08:51 IST 2016 C/CA/2372/2016 ORDER section 17B of the I.D. Act have neither been pleaded nor established.
10.3 Besides this, the order dated 11.12.2012 requires the opponent to pay wages in accordance with section 17B of the I.D. Act and it does not cast any obligation to pay full wages i.e. wages at present rate which is paid to persons in service and actually performing duties. 10.4 Under the circumstances, there is no justification to pass order directing the payment of any higher amount. Therefore, following order is passed.
11. The opponent shall start payment of last drawn wages in view of and in accordance with section 17B of the I.D. Act to the applicant with effect from 3.3.2016, i.e. the date when the application / affidavit is submitted in the Registry and the copy thereof is served to the Page 9 HC-NIC Page 9 of 11 Created On Thu Apr 07 00:08:51 IST 2016 C/CA/2372/2016 ORDER learned advocate.
12. It is clarified that if the opponent at any time hereafter comes in possession of any evidence that the applicant is gainfully employed and/or that after filing of present application, he has secured gainful employment or he is deriving income, then it would be open to the opponent to take-out appropriate application seeking any other order or modification in present order or modification in order dated 11.12.2012.
13. In view of the request by learned advocate for the opponent, he submits that the opponent is ready to proceed with the final hearing of the petition. Office will list the petition in the Cause List for Final Hearing on 28.4.2016.
With the aforesaid clarifications and directions, the application is disposed of.
(K.M.THAKER, J.) Page 10 HC-NIC Page 10 of 11 Created On Thu Apr 07 00:08:51 IST 2016 C/CA/2372/2016 ORDER Suresh*/Bharat* Page 11 HC-NIC Page 11 of 11 Created On Thu Apr 07 00:08:51 IST 2016