Gujarat High Court
Satishkumar Prabhudas Madalani vs Jilla Panchayat - Formerly Taluka ... on 30 March, 2015
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
C/MCA/3658/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR MODIFICATION OF ORDER) NO. 3658
of 2014
In
CIVIL APPLICATION NO. 13382 of 2013
In
SPECIAL CIVIL APPLICATION NO. 5957 of 1995
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SATISHKUMAR PRABHUDAS MADALANI....Applicant
Versus
JILLA PANCHAYAT - FORMERLY TALUKA PANCHAYAT....Opponent
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Appearance:
MR BJ TRIVEDI, ADVOCATE for the Applicant
MR JT TRIVEDI, ADVOCATE for the Applicant
MS JIGNASA B TRIVEDI, ADVOCATE for the Applicant
MR HS MUNSHAW, ADVOCATE for the Opponent No. 1
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
Date : 30/03/2015
ORAL ORDER
1. Heard learned advocates for the parties.
2. The applicant, who happens to be original respondent in Special Civil Application No. 5957 of 1995 and applicant in Civil Application No. 13382 of 2013 has taken out this application with following prayers:
[a] to allow this application and to direct the respondent to grant and pay the difference between current or minimum wage 15.2.2002 and the amount Page 1 of 17 C/MCA/3658/2014 ORDER already paid i.e. Rs.1,01,504/- (Rs. One lac, one thousand, five hundred, four] within a time frame and further directed the respondent to continue to make monthly payments of current or minimum wage from 1.11.2014 until final disposal of Special Civil Application No. 5957 of 1995;
and
(b) to grant such further and other reliefs, as may be deemed to be just and proper."
3. The brief facts indicating the requirement for filing this application need to be set out as under:
4. The applicant had to raise Industrial Dispute as his services were terminated on 31.3.1990. The Industrial Dispute was referred to the competent forum, whereunder, the Court passed an order on 12.1.1995 ordering reinstatement of the applicant with continuity of service without back wages. The said Award came to be assailed by the employer by way of Writ Petition being Special Civil Application No. 5957 of 1995. On 16.9.2015, this Court passed the following order:
"Notice returnable on 20th October, 1995. Ad-interim stay of operation and implementation of the award at Annexure - E, subject to the provisions of Section 17B of the I.D. Act."
5. This order remained as it is and respondent workman did not claim the wages as he was gainfully employed with Chhaya Nagarpalika. As could be seen from the averments made in the Civil Application being Civil Application No. 13382 of 2013 that the main matter being Special Civil Application No. 5957 of 1995 came to be Page 2 of 17 C/MCA/3658/2014 ORDER allowed by this Court on 22.3.2001, wherefrom, the Letters Patent Appeal No. 577 of 2001 was filed, which came to be allowed by this Court on 8.4.2005 and the judgment of learned Single Judge was quashed and set aside and matter was remanded back to the learned Judge for consideration in accordance with law, which gave effect of revival of Award dated 12.1.1995.
6. The applicant's services were terminated even from Chhaya Nagarpalika with effect from 15.2.2002 and therefore, at least from then, the applicant claimed 17B wages. The applicant filed Civil Application No. 3900 of 2005 for compliance of Section 17B of the I.D. Act, which came to be rejected by learned Single Judge in terms of order dated 26.8.2005, wherefrom, the LPA No. 914 of 2006 was filed challenging the order dated 26.8.2005, where Section 17B wages were denied. The said LPA No. 914 of 2006 was disposed of by the Division Bench of this Court vide order dated 19.3.2012. The Division Bench disposed of the Letters Patent Appeal with following direction:
"11. As such, the ad-interim relief under Section 17B of I.D. Act was in operation, pending Special Civil Application No.5759 of 1995 until the learned Single Judge (Coram:
K.M. Mehta, J.) finally decided Special Civil Application on 22.3.2001. Against the said order, LPA NO.577/2001 was preferred and it is also true that by the order of the Division Bench, the matter has been remanded to the learned Single Judge. It is not brought to our notice that pending LPA, the order of the learned Single Judge was stayed or not and it further appears that the Division Bench has remanded the matter, but has not expressly provided for revival of the interim relief under Page 3 of 17 C/MCA/3658/2014 ORDER Section 17B of I.D. Act or not. Under these circumstances, we find that such aspect can finally be examined at the time when the learned Single Judge is to decide the Special Civil Application for final hearing, or in alternative the party may resort to appropriate proceedings, if otherwise permissible in law.
12. At that stage, Mr.Trivedi, learned Counsel appearing for the appellant prayed that he may be permitted to withdraw the Civil Application No.3900 of 2005 field before the learned Single Judge as well as the present LPA. The present appeal being continuous proceedings, if the application is to be withdrawn, we find that the same can be permitted to be withdrawn, leaving the parties to agitate all questions to be raised before the learned Single Judge in the pending petition as may be available in accordance with law.
7. Thereafter, Civil Application No. 13382 of 2013 was taken out in which, this Court passed the following order on 25.11.2014, which reads as under:
"1. Heard learned advocate for the parties in civil application.
2. Learned advocate for the applicant, has invited this Court's attention to the decision of Supreme Court in case of Workmen represented by Hindustan V.O. Corpn. Ltd., V/s. Hindustan Vegetable Oils Corporation Ltd., and others, reported in (2000) 9 Supreme Court Cases 534, and submitted that the 17B wages cannot be denied, as they are substantial requirement of law for sustaining the workman during the pendency of proceedings.
3. Shri H.S. Munshaw, learned advocate for the respondent, resisted this application on the ground of Page 4 of 17 C/MCA/3658/2014 ORDER chequered history of the case and submitted that looking to the Division Bench's order, it is in fitness of things that the main matter be heard instead of any relief to be granted in this civil application. He further, submitted that the workman was originally employed only for scarcity of work in the year 1990 and thereafter, his services came to be terminated in the year 2002. He submitted that the petition is that of the year 1995 posted for final hearing.
4. The Court is of the view that looking to the decision cited at bar and fact that the 17B wages application when filed is remained unanswered and so far as gainful employment of the petitioner is concerned, the factum of petitioner being gainfully employed under Chhaya Nagarpalika is come on record and as no evidence is produced to dislodge the claim, the last drawn wages are required to be paid and therefore, the said wages from the date of his termination from Chhaya Nagarpalika i.e. 15th February 2002 to 31st October 2014 be paid within 15 days from the date of the receipt of this order and the main matter being S.C.A. No.5957 of 1995, is fixed for hearing on 12th December 2014. The civil application is disposed of. Direct service permitted."
8. The facts indicate that as per the order, the arrears of wages have been paid considering the last drawn wages in compliance with Section 17B, which was perceived by the workman to be non- compliance with the spirit and letters of the order and hence the modification application being Misc. Civil Application is filed for seeking appropriate direction with modification in the order.
9. The learned advocate appearing for the applicant submitted that Annexure II, page-19 indicate the amount payable to the applicant, wherefrom, it would emerged that the rate counted is the last drawn wages then was Rs.24.55ps only. Learned advocate appearing for the applicant submitted that the applicant received an amount of Page 5 of 17 C/MCA/3658/2014 ORDER Rs.1,01,504/- by cheque pursuant to the order passed in Civil Application No. 13382 of 2013 on 9.12.2014 but that amount being less than the amount which would have otherwise admissible if the wages were reckoned based of the last drawn wages from 15.2.2002 to 31.10.2014, beside that no order is passed by this Court for continuous wages of 17B of the I.D Act.
10. At this stage, Shri Munshaw, learned advocate for respondent - original petitioner submitted that the last drawn wages are paid regularly as directed by the Court and therefore, the part of the cause can be said to be not surviving.
11.Shri Trivedi, learned advocate appearing for the workman also did not dispute this aspect as the workman is being paid regularly the last drawn wages at the rate of Rs.24.55ps per day. However, he submitted that the Court may order appropriate amount reckoning on the basis of minimum wages, as under Article 226 of the Constitution of India, Court would appreciate that the sum of Rs.24.55ps per day is not adequate from any angle to survive in these hardship for an individual, much less for an individual in the family.
12.Learned advocate appearing for the applicant submitted that in fact incorrect facts were pressed into service as the earlier engagement of the applicant as Muster Clerk for scarcity work was not included at all, though, he was styled to be an employee for scarcity work only. The applicant was given employment on a fix wages at Rs.950/- pm as a Muster Clerk for scarcity work, as could be seen from the averments made in memo of Misc. Civil Application. The Page 6 of 17 C/MCA/3658/2014 ORDER subsequent orders of-course indicate that the applicant was engaged as daily wager. The controversy sought to be raised on this ground, which could be better depicted in the words of applicant, therefore, they are reproduced herebelow:
"para-2: The applicant respectfully submit that he has received an amount of Rs.1,01,504/- [Rs. One lac, one thousand, five hundred, four] by a cheque pursuant to the order passed in Civil Application No. 13382 of 2013 on 9.12.2014. However, the said amount is less than the minimum wages at all times for the period from 15.2.2002 to 31.10.2014. Besides, no order is passed for payment of wages section 17B of the Industrial Disputes Act for the period from after 31.10.2014 till final disposal of Special Civil Application No. 5957 of 1995. Therefore, the order passed in Civil Application No. 13382 of 2013 on 9.12.2014 deserves to be modified to that extent and the payment of wages Section 17B of the Industrial Disputes Act be directed to be continued to be paid to the applicant herein from 1.11.2014 till final disposal of Special Civil Application No. 5957 of 1995. The applicant respectfully submits that it has been the case of the respondent in Special Civil Application No. 5957 of 1995 and in appeals, etc. all throughout that the applicant was given employment as Muster Clerk for scarcity work. His pay was fixed at Rs.950/- and allowances as per Government Orders were to paid in addition, from 23.11.1987 to 19.12.1987, vide the Page 7 of 17 C/MCA/3658/2014 ORDER order dated 21.12.1987 [copy at Annexure 'I'][copy at Annexure 'A' to the Letters Patent Appeal No. 577]. The applicant respectfully further submits that an affidavit was filed on behalf of the respondent in L.P.A. No. 577 of 2001 on 2.8.2001 and it was categorically asserted therein at paragraph 5 that the applicant was employed only on a scarcity work and was not discharging duties in any industry. Besides, it was the case of the respondent in paragraph 2 of Civil Application No. 10763 of 2007 in Special Civil Application No. 5957 of 1995, for amendment that 'though relieved on 31.03.1990 by the petitioner Panchayat where the respondent was working as a daily wager muster clerk during scarcity.....'. Thus the consistent case of the respondent herein i.e. the Panchayat that the applicant was employed only on a scarcity work as muster clerk, it is incomprehensible as to why he is not paid emoluments at the rate of Rs.950/- and allowances as per Government orders, though there is written order. Therefore, it would be conducive to the ends of justice to direct the respondent, which has made payment at much lesser rate. A copy of the calculation is annexed hereto and marked Annexure 'II'. Of course, it is pertinent to point out that the bogey that the applicant was employed only on a scarcity work is resorted for generating what may be said to be misplaced sympathy of this Hon'ble Court, as no workmen, who is employed for a particular work, would not be able to complain about Page 8 of 17 C/MCA/3658/2014 ORDER termination in case of such work, once the period of scarcity is over. The respondent then actually employed the applicant as rojamdar clerk, in terms of an order bearing No. TAP/Makam/694/89, dated [date is missing] 03-1989 [copy at Annexure - 'III'], for the period from 6.2.1989 to 28..2.1989. The pay of the applicant was fixed at Rs.24/55 per day. The applicant was given work rojamdar clerk for time limit work in the Establishment Branch [Mahekam Shakha in Gujarati] and the same has had nothing to do with the appointment of the applicant as a daily wager muster clerk in the scarcity work. Of course, the respondent did realise the legal hurdle in case it would show the true and correct facts about the work of the applicant and the fresh appointment given to him. In case the applicant had been working for the scarcity work, he would have been given emoluments at the rate of Rs.950/- per month and allowances as per Government Orders in addition thereto. However, the calculation sheet [copy at Annexure 'II'], given to the applicant shows that he is not paid at rate of Rs.950/- per month and allowances as per Government Orders in addition thereto, but at the rate of Rs.665.68 per month. The same too appears to be less than Rs.24.55 p. per day. Therefore, the judgment of the Hon'ble Supreme Court in S.P.Chengalvaraya Naidy V. Jagannath, reported in AIR 1994 S.C. 853, equivalent to 1994 AIR SCW 243 would be attracted and applicable to the present lis in my respectful Page 9 of 17 C/MCA/3658/2014 ORDER submission. It has been held therein that when vital document relevant to litigation is withheld, it is fraud on Court and the guilty party is liable to be thrown out at any stage. Decree is vitiated by fraud, as was held therein. In the instant case, there has been suppression of a very material and the document in the possession and power of the respondent giving him fresh appointment as the applicant was given work rojamdar clerk vide the order issued in March, 1989. Of course, the same would be urged in the main matter viz. Special Civil Application No. 5957 of 1995. What is germane is that the theory that the applicant was given employment as Muster Clerk for scarcity work falls flat. Of course, the same did come to an end with the fresh appointment as rojamdar clerk from February 6th, 1989 until the termination in 31.03.1990."
13. Learned advocate appearing for applicant cited decision of this Court render in case of Mehsana District Cooperative Milk Producers Union Vs. Ganeshbhai M. Chaudhary, reported in 2001 (1) GLH (UJ) 14 and submitted that this Court is not precluded from awarding appropriate wages based upon the minimum wages structure when the question of granting wages under Section 17B are concerned.
14.Learned advocate appearing for the applicant thereafter invited this court's attention to decision of the Supreme Court in case of Dena Bank Vs. Kiritkumar T. Patel reported in 1997 (2) SCC 996 and Page 10 of 17 C/MCA/3658/2014 ORDER another judgment in case of Regional Authority, Dena Bank Vs. Ghanshyam, reported in AIR 2001 SC 2270 in support of his submission that correct interpretation of Section 17B would persuade the Court in taking into consideration the facts circumstances of the case and in a given case, mere the last drawn wages could be ordered, of course, the additional amount ordered to be paid be secured by way of appropriate direction so that in the eventuality of employer succeeding in its challenge to the order of reinstatement, the workman can be called upon to refund the amount paid in excess of the last drawn wages. In other words, it was submitted that this Court is not precluded to consider the granting of higher wages to the applicant as from any count the wages of Rs.24.55ps cannot be said to be a wage which would justify the granting thereof.
15. Learned advocate appearing for the applicant invited this Court's attention to the averments made in the application and submitted that the applicant is ready and willing to file an affidavit to this effect that in case if there is a need be, the amount in excess of the last drawn wages, could be refunded also.
16.Learned advocate appearing for the applicant invited this Court's attention to the judgment rendered in case of Harjinder Singh Vs. Punjab State Warehousing Corporation, reported in AIR 2010 SC 1116 with specific emphasis on para-17 and submitted that exercising jurisdiction under Articles 226 and/or 227 of the Constitution of India in matters like the present one before the Supreme Court, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative Page 11 of 17 C/MCA/3658/2014 ORDER instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43-A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub serve the common good and also ensure that the workers get their dues.
17.Learned advocate appearing for the applicant thereafter drawn the attention of this Court to judgment reported in AIR 1958 SC 923 in case of State of Mysore Vs. Worker of Gold Mines and submitted that the concept of social and economic justice is a living concept revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare state.
18.The counsel appearing for the applicant also invited this Court's attention to the decision in case of Y.A. Manarde Vs. Authority under the Minimum Wages Act, reported in (1972) 2 SCC 108 :
AIR 1972 SC 1721.
19.The counsel contended that the applicant need not prove anything more than mere statement of fact that the applicant is receiving a meager sum of Rs.24.55ps per day by way of 17B wages, which would not be even sufficient to survive through out the litigation and therefore, on this count also application is required to be allowed.
Page 12 of 17 C/MCA/3658/2014 ORDER20.Learned advocate appearing for the applicant invited this court's attention to the Supreme Court decision in case of Ramon Services (P) Ltd V Subhash Kapoor reported in (2001) 1 SCC 118: 2000 AIR SCW 4093 and submitted that it is time and again held by the Supreme Court that social justice has become a part of legal system. This concept gives meaning and significance to the democratic ways of life and the making the life dynamic. The concept of welfare State would remain in oblivion unless social justice is dispensed. Dispensation of social justice and achieving the goals set forth in the constitution are not possible without the active, concerted and dynamic efforts made by the persons concerned with the justice dispensation system. Based upon this observation, the counsel urged that the payment of last drawn wages based upon the daily wages of Rs.24.55ps is mockery and it can be said to be an amount which would help the applicant to live dignified life as living of life in this situation is merely to live an animal life. It is to live with dignity and when one needs to live life of dignity, obviously the said amount would be of no avail to applicant in any manner.
21.Learned advocate appearing for the applicant invited this court's attention to the decision in case of LIC of India Vs. Consumer Education and Research Centre and others, reported in (1995) 5 SCC 482 : 1995 AIR SCW 2834 and if the history of litigation and facts are seen, then, it would be evident that workman did not serve for more than 2 and 1/2 years with the employer and in such a situation, even the Supreme Court has said that on account of technical breach or on account of breach of Section 25, Page 13 of 17 C/MCA/3658/2014 ORDER reinstatement in fact would not warrant and appropriate compensation in lieu of reinstatement is to be considered. In such a situation, the right of higher wages than the last drawn wages may work as premium to the workman in dodging the conducting of matter and it has happened in the instant case, the matter has not been conducted though urgency is pleaded time and again. Shri Trivedi, learned advocate appearing for the applicant strongly objected to this submission made by Shri Munshaw and submitted that there was never any attempt to dodge the matter.
22.Shri Munshaw, learned advocate appearing for the respondent original petitioner submitted that the Court may fix the main matter to be taken up immediately or else it will amount to imposing a condition upon the employer, who is public body to part with greater burden without taking work from the workman, which would may not in any manner serve the interest of justice.
23.Learned advocate Shri Munshaw appearing for respondent further submitted that 17B wages are prescribed in the statutory provisions and therefore, Court's do not grant higher wages and therefore, even in the judgment of Denabank Vs. Ghanshyam (Supra), the Court has clearly stated that the excess wages than the last drawn wages could be safeguard by appropriate orders but where in the given case like this, main matter is pending since 1995. Instead of granting any higher wages, the Court may straightway fix this matter for final hearing immediately and that would serve the ends of justice.
24.Apropos submission of Shri Munshaw appearing for the employer Page 14 of 17 C/MCA/3658/2014 ORDER for conducting the main matter, learned advocate Shri Trivedi appearing for the applicant urged that decision of the Supreme Court in case of Workmen of Hindustan Vegetable Oils Corp Vs. Hindustan Vegetable Oils Copr Ltd, reported in (2000) 9 SCC 534, the aspect of 17B is required to be decided first and there cannot be any insistence of hearing of the main matter, keeping all issues aside.
25.This Court has heard learned advocates for the parties. This Court is not inclined to accept this application for the following reasons.
26. The original order, which is sought to be modified by this Misc. Civil Application is in my view is not required to be modified in any manner, as this court has taken into consideration all the aspects while granting appropriate relief from 15.2.2002 onwards. The Court is not inclined to accept the submission qua granting of higher wages in peculiar facts and circumstances of the case, as there cannot be any dispute with regard to proposition of law laid down by various courts and attention of this court invited thereto and this court is duty bound to consider facts and circumstances of each case and this court is not to be treated as precluded only on account of language of Section 17B for claiming wages only to the last drawn wages but the right of citizen enshrined under the constitution of India, as held in the judgment in case of Dena Bank (supra), is also unequivocally explain as to how and in what manner the higher wages are required to be granted and how they are to be safeguard. In the instant case, it cannot be gainsaid that the amount of Rs.24.55ps cannot be said to be a living wage in any way, then the question arises as to whether the facts and Page 15 of 17 C/MCA/3658/2014 ORDER circumstances of the case, warrants any direction for higher wages, the answer would be 'no' as in absence of any specific material placed on record indicating as to how and in what manner, the workman is sustaining himself and his family, it would not be appropriate for this Court to straightway ordered higher wages as the workman could sustain himself for all these years till he files application in form of Civil Application No. 13382 of 2013. The Court hastened to add here that this Court did not propose to laid a law that workman's sufferance and asking for adequate wages would shut him down for ever but workman is also under an obligation to indicate on facts, the circumstances under which he could survive and the reasons for not seeking appropriate relief at the appropriate time. In the instant case, it is not even the case of applicant that he is unable to live his life properly and he is facing hardship only on account of this wages, otherwise, naturally the applicant would have come to Court immediately as he was not in employment at least since 15.2.2002. The fact remains to be noted that the applicant did not agitate for receipt of 17B wages, even last drawn wages till he files the application being Civil Application No. 3900 of 2005. The Court is of the view that the prayers made in Civil Application No. 13382 of 2013 are required to be considered for deciding the scope and ambit of direction, which has been sought and hence, they are reproduced herebelow:
Prayers of Civil Application No. 13382 of 2013:
"[a] to allow this application and to direct compliance with the provisions of Section 17B of the I.D. Act, as are interpreted presently as pointed out hereinbefore from 15.02.2002 onwards, till to-date Page 16 of 17 C/MCA/3658/2014 ORDER during the pendency of the main petition.
and [b] to grant such further and other reliefs, as may be deemed to be just and proper."
27. Looking to prayers made in Civil Application No. 13382 of 2013 and present Misc. Civil Application, the same would indicate that what is sought to be obtained by way of direction is the aspect based upon the minimum wages. Looking to prayers in present Misc. Civil Application, the applicant has confined his prayer for the wages to be paid hereinafter but the confining of the prayer would warrant that the applicant is only agitating about the last amount of appears paid to him, as it was not based upon the minimum wages. The entire tenor of original application being Civil Application No. 13382 of 2013 as well as present Misc. Civil Application, dissuade this Court from exercising discretion in favour of the applicant for granting him higher wages than the last drawn wages and instead thereof, it is kept open to the applicant as well as employer respondent to urge the concerned Court for immediate taking up the main matter being Special Civil Application No. 5957 of 1995, as otherwise also, it is absolutely ripe for final hearing.
28.With these observations, present Misc. Civil Application is dismissed. The Court has not opined on merits of the matter in any manner. No costs.
(S.R.BRAHMBHATT, J.) pallav Page 17 of 17