Gujarat High Court
Arvindbhai Jivabhai Parmar(Sukhadia) vs State Of Gujarat on 20 March, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/13136/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13136 of 2016
ARVINDBHAI JIVABHAI PARMAR(SUKHADIA)
Versus
STATE OF GUJARAT
Appearance:
MR MUKESH N VAIDYA(5197) for the PETITIONER(s) No. 1
MR DEVNANI AGP (99) for the RESPONDENT(s) No. 1
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 20/03/2018
ORAL ORDER
1. Heard Mr. Aditya D Bhatt, learned advocate for Mr. Mukesh N Vaidya, learned advocate for the petitioner and Mr. Devnani, learned AGP for the respondent.
2. In this petition the petitioner has prayed, inter alia, that:-
"7(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent authorities to grant the benefits of permanency / regularization to the petitioner in the job, when the persons junior to the petitioners have been regularized and or made permanent and be further pleased to pass an order directing the respondents to pay him difference of arrears of salary and allowances and all other service benefits with effect from the day on which the persons junior to the petitioner were given the benefits of permanency in the interests of justice.
(B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent authorities to make payment to the petitioner or the arrears of salary from 1.1.2013 to 26.4.2015 as contemplated under Section 17-B of the Industrial Disputes Act, 1947 as early as possible in the interest of justice;"
3. So far as factual background is concerned it has emerged from the record that somewhere in 1990 the petitioner herein had raised industrial dispute with the allegation that the opponent employer illegally terminated his service.
Page 1 Downloaded on : Thu Oct 24 02:51:17 IST 2019 C/SCA/13136/2016 ORDER 3.1 Appropriate Government referred the said dispute for adjudication vide order dated 25.6.1990 to the learned Labour Court at Ahmedabad. Learned Labour Court registered the said dispute as Reference (LCA) No. 1389 of 1990.
3.2 After adjudication of the reference learned Labour Court partly allowed the reference with the direction to the opponent employer to reinstate the claimant on his original post with consequential benefits and 30% backwages. 3.3 Feeling aggrieved by the said award dated 31.12.2005 the employer filed Special Civil Application No. 25327 of 2006.
3.4 The High Court admitted said petition vide order dated 6.12.2006 and vide subsequent order dated 7.2.2007 High Court granted / confirmed interim relief whereby the implementation and operation of the award came to be stayed.
3.5 After High Court passed order dated 7.2.2007 the claimant filed Civil Application No. 6249 of 2007 with the Page 2 Downloaded on : Thu Oct 24 02:51:17 IST 2019 C/SCA/13136/2016 ORDER claim for payment of last drawn wages in accordance with Section 17 B of the Industrial Disputes Act, 1947 (hereinafter referred to as the "I.D. Act") . 3.6 The said Civil Application came to be allowed vide order dated 10.5.2007. The Court, vide said order dated 10.5.2007 directed, inter alia, that:-
"6. Therefore, in light of the aforesaid facts, according to my opinion, once the stay is granted against the reinstatement, the respondent workman is entitled the benefit of Section 17-B of the Industrial Disputes Act, 1947.
7. Therefore, it is directed to the present opponent ? original petitioner to pay last drawn wages inclusive of any maintenance allowance available to the applicant as per service rules to the with effect from 31st December 2005 till 31st May 2007 within a period of one month from the date of receiving the copy of the said order.
8. It is further directed to the original petitioner to pay regularly last drawn monthly wages as required under Section 17-B of the Industrial Disputes Act, 1947 till the matter will be decided finally by this Court.
9. However, it is made clear that in case if original petitioner is having any material to show that workman concerned is gainfully employed or employed in any establishment and receiving the remuneration, then, it is open for the original petitioner to file such Civil Application before this Court for modification of this order."
3.7 The petition being Special Civil Application No. 25327 of 2006 filed by the employer was taken up for final hearing and the petition came to be partly allowed vide judgment dated 10.12.2012.
3.8 By the said judgment dated 10.12.2012 High Court set aside the direction whereby labour Court granted continuity of service and backwages. The High Court confirmed direction only qua reinstatement. The relevant part of the Page 3 Downloaded on : Thu Oct 24 02:51:17 IST 2019 C/SCA/13136/2016 ORDER judgment dated 10.12.2012 reads thus:-
4. It also appears from the record that respondent-workman has completed 240 days regular service, therefore, this Court is of the view that the Labour Court has rightly reinstated the respondent-workman. However, I find that the Labour Court has wrongly granted continuity of service to the respondent-workman. Therefore, the impugned judgement and award is quashed and set aside qua granting continuity of service and 30% back wages.
5. For the foregoing reasons, the present petition is partly allowed. The judgement and award of the Labour Court stands modified to the above extent. The rest of the award remains unaltered. Rule is made absolute to the above extent." 3.9 Feeling aggrieved by order dated 10.12.2012 in Special Civil Application No. 25327 of 2006 the employer preferred Special Leave Petition No. 21102 of 2013 before Hon'ble Apex Court. The said SLP came to be rejected by Apex Court vide order dated 13.12.2013. The said order reads thus:-
"UPON hearing counsel the Court made the following ORDER The Special Leave Petition is dismissed on the ground delay as well as on merits."
3.10 According to the claimant the employer reinstated him somewhere in or around April 2015.
4. In this factual background the petitioner has prayed for above quoted relief.
4.1 The learned Counsel for the petitioner submitted that the learned Labour Court, vide award dated 31.12.2005, directed the employer to reinstate the claimant. The said award / direction was stayed during pendency of the petition therefore, the petitioner was eligible for benefit under Section 17-B of the I.D. Act.
Page 4 Downloaded on : Thu Oct 24 02:51:17 IST 2019 C/SCA/13136/2016 ORDER 4.2 According to learned advocate for the petitioner the amount payable to the petitioner (original claimant) under Section 17-B of the I.D. Act, during pendency of the petition is paid to the petitioner and he has no grievance with regard to the said period. He would, however submitted that after High Court disposed of the petition (SCA No.25327 of 2006) vide order dated 10.12.2012, the employer filed SLP before Hon'ble Apex Court. The said SLP was filed somewhere in 2013 which came to be rejected summarily, by Hon'ble Apex Court vide order dated 13.12.2013.
4.3 According to learned advocate for the petitioner, the petitioner is, therefore, entitled for payment under Section 17B of I.D. Act for the period from 10.12.2012 (or from 1.1.2013) till the date on which the petitioner came to be actually reinstated. It is also submitted that since the employer failed to pay the benefit under Section 17B of I.D. Act for the said period, the petitioner filed this petition. 4.4 Since the claim is raised in light of Section 17B of I.D. Act, it is also relevant to take into account the said provision i.e. Section 17B of the I.D. Act which reads thus:-
Page 5 Downloaded on : Thu Oct 24 02:51:17 IST 2019 C/SCA/13136/2016 ORDER 17B. Payment of full wages to workman pending proceedings in higher courts.- Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court: Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be.] (emphasis supplied) 4.5 From said provision it becomes clear that the benefit thereunder is to be paid "during the pendency" of proceedings before High Court or Apex Court. Meaning thereby the said obligation does not continue after completion of proceedings before High Court or Apex Court.
5. So far as the relief prayed for in paragraph No. 7(B) is concerned, it is relevant to note that the petitioner seeks benefit of last drawn wages in accordance with Section 17(B) of the I.D. Act, for the period from 1.1.2013 to 26.4.2015.
5.1 In this context, it is necessary to take into account certain dates and events.
(a) learned Labour Court passed award on 31.12.2005
(b) High Court admitted the petition on 6.12.2006 and granted interim relief vide order dated 7.2.2007
(c) High Court passed further order on 10.5.2007 Page 6 Downloaded on : Thu Oct 24 02:51:17 IST 2019 C/SCA/13136/2016 ORDER directing the employer to pay last drawn wages in accordance with Section 17-B of the I.D. Act w.e.f.
31.12.2005 (i.e. the date of award till 31.5.2007) with further direction to pay said benefit regularly until final decision in Special Civil Application No. 25327 of 2006
(d) the petition came to be finally decided vide order dated 10.12.2012.
6. Thus, in light of the order dated 10.5.2007 the petitioner was entitled for payment of last drawn wages under Section 17-B of the I.D. Act, until 10.12.2012 when the petition came to be finally disposed of. 6.1 After 10.12.2012, whether the employer did not reinstate the claimant or whether it was the claimant who did not report for duty are questions which, at this stage cannot be answered or decided by this Court for want of relevant evidence. In this context obviously, the claimant would allege that he was not reinstated by the employer and the employer would claim that the claimant never reported for duty after petition came to be decided vide order dated 10.12.2012.
Page 7 Downloaded on : Thu Oct 24 02:51:17 IST 2019 C/SCA/13136/2016 ORDER 6.2 Be that as it may. The said issue cannot be decided at this stage in present proceedings for want of relevant material.
6.3 From the facts it has emerged that against the decision dated 10.12.2012 the employer had taken out proceedings before Apex Court by filing SLP No. 21102 of 2013 which cam to be rejected by Apex Court on ground of delay and also on merits vide order dated 13.12.2013. 6.4 The petitioner has not placed on record any material to demonstrate that he had filed any application / affidavit before Apex Court declaring that during the period after rendition of the decision dated 10.12.2012 (whereby the said Special Civil Application No. 25327 of 2006 came to be decided) and during pendency of Special Leave Petition before Apex Court he remained unemployed / he was not gainfully employed.
7. At this stage it is relevant to take into account the decision dated 15.5.2011 by Division Bench in Letters Patent Appeal No.531 of 2008 whereby division bench has Page 8 Downloaded on : Thu Oct 24 02:51:17 IST 2019 C/SCA/13136/2016 ORDER held that the employee in whose favour award is passed would be eligible for payment of last drawn wages in accordance with Section 17B, from the date he files affidavit declaring that he is not gainfully employed. 7.1 Since High Court passed order dated 10.5.2007 in Civil Application No. 6249 of 2007 with the direction to pay benefit under Section 17B, it has to be assumed that the claimant must have filed affidavit declaring that he is not gainfully employed. On the strength of such declaration the employee became eligible for benefit under Section 17B until 10.12.2012.
7.2 At this stage it is necessary to recall that in the order dated 10.5.2007, High court specifically clarified that the employer shall be obliged to pay last drawn wages in accordance with Section 17B till Special Civil Application No. 25327 of 2006 gets finally decided by the High Court. This Court also clarified that:-
"in case if original petitioner is having any material to show that workman concerned is gainfully employed or employed in any establishment and receiving the remuneration, then, it is open for the original petitioner to file such Civil Application before this Court for modification of this order"
7.3 By virtue of said clarification this Court had kept the option open for the employer to verify as to whether Page 9 Downloaded on : Thu Oct 24 02:51:17 IST 2019 C/SCA/13136/2016 ORDER claimant is gainfully employed after order dated 10.5.2007 or not.
8. In this background life of the order dated 10.5.2007, expired when the petition came to be finally decided vide judgment dated 10.12.2012.
8.1 There is nothing on record to demonstrate or establish that the claimant remained unemployed and was not gainfully employed from 10.12.2012 to the date on which the claimant came to be actually reinstated by the opponent employer.
8.2 It is not the case of the claimant in present petition that for the period after 10.12.2012 he had made any affidavit and declared that he is not gainfully employed and submitted such affidavit to the employer. 8.3 The Court specifically asked learned advocate for the petitioner to show any specific assertion even in memo of petition which would indicate that the petitioner has, on oath stated that from 10.12.2012 until he came to be actually reinstated he was not gainfully employed and he Page 10 Downloaded on : Thu Oct 24 02:51:17 IST 2019 C/SCA/13136/2016 ORDER remained unemployed.
9. Learned advocate for the petitioner could not show any averment / statement from the memo of the petition or any affidavit made by the petitioner after 10.12.2012 declaring that he was not gainfully employed and he remained unemployed even during period from 10.12.2012 to the date when he came to be reinstated.
10. The Court inquired from the learned advocate for the petitioner as to whether the petitioner had filed any affidavit before Hon'ble Apex Court declaring that after 10.12.2012 he was not gainfully employed.
11. Learned advocate for the petitioner submitted that such affidavit was not filed before Hon'ble Apex Court because SLP came to be rejected at the threshold / summarily.
12. Net result of the discussion is that the petitioner has nowhere declared on oath (by any affidavit) that he remained unemployed and was not gainfully employed during the period from 1.1.2013 to the date on which the Page 11 Downloaded on : Thu Oct 24 02:51:17 IST 2019 C/SCA/13136/2016 ORDER petitioner came to be reinstated by the employer. 12.1 Even otherwise, Section 17B of I.D. Act contemplates payment of last drawn wages only "during the period when any proceeding is pending before High Court or Hon'ble Apex Court." In present case, after 10.12.2012 any proceeding (i.e. SCA No.25327 of 2006) was not pending before High Court. The exact date when the SLP came to be filed before Hon'ble Apex Court is neither mentioned by the petitioner nor by the respondent. The said detail is not available on record. The said SLP came to be summarily rejected on 13.12.2013. Therefore, any proceeding (by way of SLP or by any other mode) was not pending before Hon'ble Apex Court after 13.12.2013.
12.2 Under the circumstances, the petitioner, even otherwise, would not be entitled for any benefit under Section 17B of the I.D. Act after 10.12.2012 i.e. from 11.12.2012 to the date when the SLP came to be filed before Hon'ble Apex Court and from the period after 13.12.2013. 12.3 In absence of such declaration by the petitioner, it is not possible to pass any direction as prayed for by the Page 12 Downloaded on : Thu Oct 24 02:51:17 IST 2019 C/SCA/13136/2016 ORDER petitioner in paragraph No. 7(B) of the petition. When the petitioner has not declared that he remained unemployed and was not gainfully engaged for the period in question the direction prayed for cannot be granted.
13. At this stage it would not be out place to recall and take into account the observation by Division Bench in Letters Patent Appeal No. 531 of 2008 wherein Division Bench has clarified that the employee would be entitled for the payment of last drawn wages under Section 17-B of the I.D. Act when the employee declares on affidavit that he is unemployed and he is not gainfully employed. Meaning thereby in absence of such declaration on affidavit, employee would not be entitled for such payment / benefit. 13.1 It is not the case of the petitioner that the employer had not paid last drawn wages under Section 17B as per direction vide order dated 10.5.2017 and that the last drawn wages required to be paid to the claimant in light of the order dated 10.5.2017 are already paid to the claimant. 13.2 It is also relevant to take into account the fact that the petitioner has come forward with the claim (mentioned in Page 13 Downloaded on : Thu Oct 24 02:51:17 IST 2019 C/SCA/13136/2016 ORDER paragraph No. 7B of the petition), after passage of more than 4 years and during said period the claimant never raised demand for the last drawn wages under Section 17B and he did not file affidavit and did not declare that during that period he remained unemployed and was not gainfully engaged and that therefore he is entitled for the benefit under Section 17B.
13.3 For aforesaid reasons, the claim by the petitioner in paragraph No. 7B does not deserve to be and cannot be granted.
14. Now so far as relief prayed for in paragraph No. 7A is concerned it is necessary to mention that the said relief does not deserve to be and cannot be granted. 14.1 There is no material on record on strength of which the benefit of regularization and permanency can be granted. The only premise on which the petitioner has raised his claim is that he was employed by the respondent in January 1985.
14.2 In this context it is relevant to note that the service of Page 14 Downloaded on : Thu Oct 24 02:51:17 IST 2019 C/SCA/13136/2016 ORDER the petitioner came to be terminated in 1990. Meaning thereby the petitioner rendered service during 1985 to 1990 and that is also intermittently and on daily wage basis. Thereafter in 1990 service of the petitioner came to be terminated.
14.3 The learned Labour Court rendered decision on 31.12.2005. Meaning thereby 1990 to 2005 the petitioner was not in service with the respondent. 14.4 Learned Labour Court vide order dated 31.12.2005 directed the employer to reinstate the claimant and to pay 30% backwages and treat the service of the claimant as continuous.
14.5 However, High Court set aside order granting continuity of service and backwages.
14.6 The said decision dated 10.5.2007 has attained finality.
14.7 As a consequence of the order dated 10.12.2012 the petitioner's service is not to be treated as continuous. The situation which arise is that there is hiatus and break in Page 15 Downloaded on : Thu Oct 24 02:51:17 IST 2019 C/SCA/13136/2016 ORDER petitioner's service from 1990 to April 2015.
15. In this view of the matter, the petitioner is not justified in claiming regularization and permanency on the premise that he was initially engaged in January 1985. The hiatus in petitioner's service from 1990 to April 2015 cannot be ignored.
15.1 From the record it appears that so as to justify the claim the petitioner subsequently filed another affidavit (fruiter affidavit dated 24.07.2017). 15.2 By virtue of the said affidavit the petitioner made an effort to claim parity by alleging that service of his junior have been regularized.
15.3 However the petitioner has not placed any material on record to demonstrate, support and justify said allegation. The names of any person working in the same cadre and the date on which the said persons came to be appointed are not mentioned.
15.4 Even otherwise, in view of the peculiar facts of present case viz. long hiatus in service from 1990 to 2015 puts the Page 16 Downloaded on : Thu Oct 24 02:51:17 IST 2019 C/SCA/13136/2016 ORDER case of the petitioner on different footing and his case would not be comparable with any other employee because such hiatus in service would be absent in case of other employees.
15.5 It is necessary to note that along with his further affidavit the petitioner has placed on record copy of the order dated 19.4.1993 issued by the respondent in respect of three persons.
15.6 The petitioner has tried to compare his case with the said three persons. However the petitioner has conveniently not mentioned the date on which the said three persons came to be appointed. The petitioner has also not clarified as to whether there is similar hiatus in their service or they worked with employer continuous from the date of initial appointment.
15.7 Besides said lack of clarity, what is more important is the fact that the said three persons whose instance the petitioner has relied on were working as Laboratory Attendant and their services have been regularized in category of Laboratory Attendant, whereas the petitioner Page 17 Downloaded on : Thu Oct 24 02:51:17 IST 2019 C/SCA/13136/2016 ORDER was engaged and working as Peon. Therefore also the petitioner's case is not comparable with the case of said three persons.
16. In nutshell, the fact situation which can be summarized is that the petitioner has failed to place any material on record which would justify his claim for regularization and status of permanent workman. 16.1 There is no material on record which would support the petitioner's claim on premise of parity and / or even on ground of long service.
17. As observed by Hon'ble Apex Court in case of Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC Page-1 mere long service as ad-hoc and daily wage employee does not make the employee eligible for regularization.
18. In present case even the claim on premise of long service is also not available to the petitioner in light of long hiatus in service.
For above mentioned reasons the relief prayed for by the petitioner in paragraph No. 7(A) also cannot be granted.
Page 18 Downloaded on : Thu Oct 24 02:51:17 IST 2019 C/SCA/13136/2016 ORDER In the result the petition deserves to be rejected and is accordingly rejected.
Orders accordingly.
(K.M.THAKER, J) SURESH SOLANKI Page 19 Downloaded on : Thu Oct 24 02:51:17 IST 2019