Gujarat High Court
Alembic vs Vikramsinh
Author: H.K.Rathod
Bench: H.K.Rathod
SCA/23269/2006 3/ 9 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 23269 of 2006 ===================================================== ALEMBIC EMPLOYEES CO.OP.SUPPLYSOCIETY LTD - Petitioner(s) Versus VIKRAMSINH RAMSINH ATALIA - Respondent(s) ===================================================== Appearance : MR SJ SHAH for Petitioner(s) : 1,MR KETAN I ACHARYA for Petitioner(s) : 1, NOTICE SERVED for Respondent(s) : 1, RULE SERVED for Respondent(s) : 1, ===================================================== CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 13/08/2007 ORAL ORDER
Heard learned Advocate Mr. SJ Shah for the petitioner and Mr. Vikramsinh Ramsinh Atalia, who is appearing as a party in person for the respondent.
Through this petition under Article 227 of the Constitution of India, petitioner is challenging award made by the labour court dated 160 of 1999 dated 27.7.2006 wherein the labour court has granted reinstatement with continuity of service without back wages for interim period.
This Court has, by order dated 15.11.06, granted ad interim relief against the award and has by order dated 26.2.2007, issued rule in the matter. Therefore, the matter is for consideration of interim relief.
Respondent workman who is appearing as a party in person before this court has filed affidavit on 3.7.2007 wherein he has a verred that he was dismissed from service on 21.11.1998 and thereafter, he was not employed in any establishment and he has not served anywhere and he has not been receiving any salary from the employment. In short, according to the respondent, he is unemployed. As against that, petitioner has filed affidavit relying upon the deposition of the workman before the labour court page 51 para 22 that he has not remained unemployed as per the finding given by the labour court that he is earning Rs.2000.00. Except that, no other material has been placed by the petitioner before this court for showing that after the award, respondent has been gainfully employed in any establishment. NO documentary evidence has been placed on record except reliance upon the finding given by the labour court which has been given by the labour court while considering the case of the respondent for back wages. Thereafter, the respondent has filed further affidavit in reply and has clarified further that at present, he is not employed in any establishment and the facts mentioned as per his deposition about Rs.2000.00 are not correct and he has made various efforts but has not been able to secure employment due to his age and he is prepared to resume duty in the establishment of the petitioner at any time if the petitioner is prepared to allow him to resume the duty. His house is maintained with the income of his wife.
In light of the aforesaid pleadings and keeping in mind the fact that the award of reinstatement is stayed by this court and also considering the provisions of section 17B of the ID Act, 1947, petitioner has failed to establish before this court by concrete evidence that the respondent is employed in any establishment and is receiving adequate remuneration or remuneration. For that, no documentary evidence has been produced by the petitioner before this court. Not only that, except the observations made by the labour court on the basis of the deposition of the workman as per page 51 para 22, no other material or detail or evidence has been produced by the petitioner in his counter affidavit.
For considering and deciding the question of back wages for interim period, labour court has considered deposition of the respondent workman Exh. 11 wherein it was deposed by the workman before the labour court on oath that he is presently unemployed, made various efforts for securing service but because of age, not able to get job elsewhere. His household expenditure comes to Rs.2000.00. Considering this deposition of the workman, labour court denied back wages for interim period. Petitioner is placing reliance only on those findings of the labour court for contending that the workman is also not entitled for benefit of 17B benefits even though award of reinstatement is stayed by this court. According to my opinion, it has nothing to do with the provisions of section 17B of the ID Act, 1947. Even if it is assumed for the sake of argument that the workman was earning something during the interim period but after award, if he has not been continuing in service or gainful employment, then, it cannot be said that the workman is not entitled for benefit of section 17B of the ID Act, 1947. If the workman is contending that he is unemployed, he is prepared to resume duty with the employer and if the employer is not prepared to reinstate him subject to result of the petition, then, for disentitling the workman from claiming benefit of section 17B of the ID Act, 1947, it is necessary for the employer to establish by way of concrete evidence that the workman is earning adequate remuneration by being employed in any establishment. In this case, workman is contending that he is unemployed, not employed in any establishment gainfully and is prepared to resume duty if petitioner is prepared to allow him to join duty but petitioner is not ready to reinstate him in service. If the respondent would have been really employed in any establishment and would have been earning adequate remuneration, then, he would not have been ready for joining establishment of petitioner but he would have pressed only for benefit of section 17B of the ID Act, 1947. In such a situation, employer is having two option, one to allow workman to resume duty during the pendency of petition or to opt for payment of section 17B of the ID Act, 1947. If the employer is neither prepared to reinstate the workman nor to pay benefit of section 17B of the ID Act, 1947, then, employer is required to establish before this Court that the workman is gainfully employed in any establishment and is earning adequate remuneration. In this case, though petitioner is not prepared to reinstate the respondent workman, at the same time, he is contending that workman is not entitled for section 17B benefit only on the basis of the ground on which back wages have been denied by the labour court and except that, there is no other material available with the petitioner to contend that the workman is not entitled for section 17B benefits. Therefore, reliance placed by the learned Advocate for petitioner on the deposition of workman wherein workman has admitted that his house is maintained with the cost of Rs.2000/- meaning thereby, he was earning Rs.2000.00 is misplaced reliance. That evidence is relevant for the purpose of considering back wages aspect and not relevant for the purpose of considering entitlement of the workman for benefit under section 17B of the ID Act, 1947. Therefore, considering specific averment of the workman in his affidavits about his unemployment, not employed in any establishment, not earning gainfully and considering his readiness and willingness to work if petitioner is prepared to allow him to join duty, according to my opinion, counter which is filed by the petitioner is not satisfying this court about gainful employment of the respondent workman. In fact, an attempt was made by the petitioner to create prejudice against the respondent by suggesting the evidence of workman before the labour court, otherwise, there is no relevancy when specific affidavit is filed after publication of award by workman that at present, he is unemployed, not gainfully employed in any establishment and not receiving adequate remuneration and, therefore, considering the matter from all angles, according to my opinion, the respondent workman is entitled for benefit of section 17B of the ID Act, 1947 from the date of the award.
Therefore, petitioner is directed to pay to the respondent workman full wages last drawn by the workman inclusive of maintenance allowance, if any, under the service rules with effect from 27.7.2006 to 31.7.2007 within period of one month from the date of receipt of copy of this order and thereafter to continue to pay such full wages last drawn by respondent workman regularly every month uninterruptedly till the matter is finally heard and decided by this court.
In view of these observations and directions, ad interim relief granted by this court on 15.11.2006 is confirmed till the petition is finally heard and decided by this court.
(H.K. Rathod,J.) Vyas