Gujarat High Court
State Of Gujarat vs Ishavarbhai Shidavabhai Dhodhade on 1 February, 2021
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
C/SCA/13557/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13557 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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STATE OF GUJARAT
Versus
ISHAVARBHAI SHIDAVABHAI DHODHADE
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Appearance:
MS ASMITA PATEL, AGP for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 01/02/2021
ORAL JUDGMENT
1. Heard Ms. Asmita Patel, learned Assistant Government Pleader for the petitioner - State.
2. By way of filing the present petition, the Page 1 of 17 Downloaded on : Wed Sep 01 05:04:53 IST 2021 C/SCA/13557/2020 JUDGMENT petitioners have challenged the order dated 31st August, 2018 passed by the learned Presiding Officer, Labour Court, Valsad below Exhibit 41 in the Payment of Wages Act Application No.24 of 2010 whereby the learned Presiding Officer, Labour Court, Valsad partly allowed the application preferred by the respondent workman and directed the present petitioners to pay a sum of Rs.20,354.40/- within a period of 30 days and the cost of Rs.3,000/- was also awarded to the present petitioners with a direction to pay the same to the respondent herein.
3. Brief facts giving rise to the present petition are as under.
1. It was the case of the respondent workman before the Controlling Authority under the Payment of Wages Act, Valsad that he was serving under the petitioner since 1988 as a Watchman. He had worked for more than 240 days in each year. His services were governed by the various provisions of the labour law. However, the petitioner never Page 2 of 17 Downloaded on : Wed Sep 01 05:04:53 IST 2021 C/SCA/13557/2020 JUDGMENT gave him any appointment letter, attendance card, salary slips, leave details etc. He was not getting any leave or benefits of leave encasement from the petitioners. He used to perform his duties from 08 : 00 a.m. to 06 :
00 p.m. The petitioners herein were not paying him any weekly off or overtime and though he used to work for 30 days in every month, the petitioner used to pay him wages only for the period of 26 days. According to the workman, since February-2010, though the petitioners were taking work for the entire month, the petitioners used to pay him the wages only for the period of 15 days and the petitioners used to deposit the said amount in the bank account. Accordingly, the workman preferred the application under Section 15 (2) and 16 of the Payment of Wages Act before the learned Controlling Authority, Valsad under the Payment of Wages Act and prayed for his outstanding dues towards the payment of wages. According to the respondent workman, Page 3 of 17 Downloaded on : Wed Sep 01 05:04:53 IST 2021 C/SCA/13557/2020 JUDGMENT there was an outstanding amount of Rs.43,484/-, which he claimed by filing the payment of wages application no.24 of 2010 and prayed for the payment of the said amount along with the penalty on the said amount and cost of the litigation.
2. The aforesaid application was contested by the present petitioners by filing the written statement. It was the say of the petitioners that the activities of the Forest Department can be said to be welfare activities and the motive behind those activities is not to earn any profit and accordingly, the Industrial Disputes Act, 1947 is not applicable in respect of the case of the respondent workman. The petitioner also took a defence that as and when the services of workman was required, he was called for and was paid and accordingly, the petitioner denied the claim of the workman raised in the claim statement by saying that the respondent is not entitled for the amount Page 4 of 17 Downloaded on : Wed Sep 01 05:04:53 IST 2021 C/SCA/13557/2020 JUDGMENT which was claimed by him.
3. After considering the materials on record as well as the oral and written evidences adduced by the respective parties, the learned Presiding Officer, Labour Court, Valsad partly allowed the application preferred by the respondent workman and passed the order directing the present petitioners to pay a sum of Rs.20,354.40 within a period of 30 days from the date of the order along with the cost of Rs.3,000/-.
4. The order passed by the learned Presiding Officer, Labour Court, Valsad is under challenge by way of this petition.
5. It is noteworthy that the order, which is under challenge was passed on 31st August, 2018 by the Presiding Officer, Labour Court, Valsad below application preferred by the workman under Section 15 (2) and 16 of the Payment of Wages Act. As per the scheme of the Payment of Wages Act, Section 17 provides for an appeal against an Page 5 of 17 Downloaded on : Wed Sep 01 05:04:53 IST 2021 C/SCA/13557/2020 JUDGMENT order dismissing either wholly or in part an application made under Sub Section 2 of Section 15 or against the direction made under Sub Section 3 or Sub Section 4 of Section 15 within a period of 30 days from the date of the order. Section 17 (1A) of the Payment of Wages Act further provides that while preferring the appeal, the appellant is also required to deposit the amount payable under the direction appeal against and the said certificate must accompany the appeal. Section 17 of the Payment of Wages Act reads as under.
17. Appeal.--
(1) 69 [An appeal against an order dismissing either wholly or in part an application made under sub-section (2) of section 15, or against a direction made under sub-section (3) or sub-section (4) of that section] may be preferred, within thirty days of the date on which 70 [the order or direction] was made, in a Presidency-town 71 [***] before the Court of Small Causes and elsewhere before the District Court--
(a) by the employer or other person responsible for the payment of wages under Page 6 of 17 Downloaded on : Wed Sep 01 05:04:53 IST 2021 C/SCA/13557/2020 JUDGMENT section 3, if the total sum directed to be paid by way of wages and compensation exceeds three hundred rupees 72 [or such direction has the effect of imposing on the employer or the other person a financial liability exceeding one thousand rupees], or 73 [(b) by an employed person or any legal practitioner or any official of a registered trade union authorized in writing to act on his behalf or any Inspector under this Act, or any other person permitted by the authority to make an application under sub-
section (2) of section 15, if the total amount of wages claimed to have been withheld from the employed person exceeds twenty rupees or from the unpaid group to which the employed person belongs or belonged exceeds fifty rupees, or]
(c) by any person directed to pay a penalty under 74 [sub-section (4)] of section 15. 75 [(1A) No appeal under clause (a) of sub- section (1)] shall lie unless the memorandum of appeal is accompanied by a certificate by the authority to the effect that the appellant has deposited the amount payable under the direction appealed against.] 76 [(2) Save as provided in sub-section (1), any order dismissing either wholly or in part Page 7 of 17 Downloaded on : Wed Sep 01 05:04:53 IST 2021 C/SCA/13557/2020 JUDGMENT an application made under sub-section (2) of section 15, or a direction made under sub- section (3) or sub-section (4) of that section shall be final.] 75 [(3) Where an employer prefers an appeal under this section, the authority against whose decision the appeal has been preferred may, and if so directed by the court referred to in sub-section (1) shall, pending the decision of the appeal, withhold payment of any sum in deposit with it.
(4) The court referred to in sub-section (1) may, if it thinks fit, submit any question of law for the decision of the High Court and, if it so does, shall decide the question in conformity with such decision.]
6. It is required to be noted that though as per the scheme of the Payment of Wages Act, 1936, the order passed under Section 15 (2) is appealable order at the instance of the employer along with the certificate to the effect that the amount awarded by the learned Presiding Officer is deposited, the present petition is preferred bypassing the provisions of the appeal.
7. A perusal of the Section 17 of the Payment of Page 8 of 17 Downloaded on : Wed Sep 01 05:04:53 IST 2021 C/SCA/13557/2020 JUDGMENT Wages Act would indicate that the petitioner was required to file an appeal as provided in Section 17 along with depositing the entire amount as awarded by the Presiding Officer, Labour Court, Valsad before filing the Appeal and by producing / attaching a certificate to that effect. The appeal was required to be filed within a period of 30 days as provided under Section 17. However, the order dated 31st August, 2018 is challenged by the petitioner straightway before this Court without preferring any appeal before the learned District Court, Valsad after a delay of more than 2 years. Even the delay is not justified in the memo of petition and therefore, the petition is required to be dismissed on the ground of non availability of alternative remedy. Page 9 of 17 Downloaded on : Wed Sep 01 05:04:53 IST 2021
C/SCA/13557/2020 JUDGMENT
8. When this aspect was pointed out to Ms.Asmita Patel, learned Assistant Government Pleader, she submitted that there are catena of decisions, whereby this Court as well as the Supreme Court have taken a view that under exceptional circumstances, under Articles 226 and 227 of the Constitution of India, this Court has powers to entertain the petition straightway, even if it is preferred bypassing the statutory appeal as provided under Section 17 of the Act. Ms.Asmita Patel, learned Assistant Government Pleader submitted that actually, the workman was paid the amount of Rs.1,73,010/- towards his outstanding wages and nothing further was required to be paid to the workman and the learned Controlling Authority under the Payment of Wages Act has committed an error by not appreciating the fact that the amount stated hereinabove is already paid to the workman and there was no outstanding amount and therefore, the order passed by the learned Presiding Officer, Labour Court, Valsad is bad in law and the application preferred by Page 10 of 17 Downloaded on : Wed Sep 01 05:04:53 IST 2021 C/SCA/13557/2020 JUDGMENT the petitioners deserves to be interfered with. Alternatively, Ms.Asmita Patel, learned Assistant Government Pleader submitted that in view of Section 17 of the Payment of Wages Act, which provides for an appeal before the competent Court, if this Court is not entertaining this petition, in that case, liberty may be reserved in favour of the petitioner to act in accordance with Section 17 of the Payment of Wages Act, 1936. She also urged that this Court may relegate the petitioner to the remedy of appeal without going into the merits of order, which is under challenge by way of this petition. It is further submitted that after the period of 30 days subject to the applicability of Section 5 of the Limitation Act, on showing sufficient cause, a period of delay caused in preferring the appeal can be condoned. In support of her contention, Ms.Asmita Patel, learned Assistant Government Pleader draws attention of this Court and relies upon the judgment dated 13th January, 2011 passed in Special Civil Application No.14537 of 2010 in Page 11 of 17 Downloaded on : Wed Sep 01 05:04:53 IST 2021 C/SCA/13557/2020 JUDGMENT the case of Bavjibhai Dayabhai Solanki & 3 Vs.Parshuram Pottery Works Co.Ltd. & 1. She also draws attention on para nos.4 to 7 of the aforesaid judgment, which reads as under.
"4. Mr. Varun Patel, learned advocate appearing for the respondents could not controvert the fact that the law prevailing and the provision of section 17 of the Payment of Wages Act 1936 so far as the Gujarat is concerned does carry a provision whereby it is expressly provided that provision of section 5 of Indian Limitation Act is applicable to the appeal under section 17 of the Payment of Wages Act 1936.
5. In view of the aforesaid submissions and in view of the fact that the trial court has committed an error in not appreciating applicable provision prevalent in the State of Gujarat in respect of section 17 of Payment of Wages Act 1936, this petition is required to be allowed on limited ground and at the same time it is required to be observed that, this Court has not opined anything on merits of the delay condition application in any manner. At this stage it may be mentioned that learned advocate Mr. Patel for the respondents was correct in his submission that the decision cited in the judgment impugned in this matter appears to be that of Allahabad High Court in case of HIND MAZDOOR SABHA Vs. STATE OF U.P. AND OTHERS, reported in 2000-II-LLJ pg. 583, as the extracted portion therefrom also go to support submission of Mr. Patel. The provision applicable in State of Gujarat so far as Page 12 of 17 Downloaded on : Wed Sep 01 05:04:53 IST 2021 C/SCA/13557/2020 JUDGMENT section 17 is concerned, it contains clear stipulation that section 5 of the Limitation Act would be applicable to the appeal proceedings under section 17 of the Payment of Wages Act 1936.
Therefore, the judgment relied upon by the learned court while deciding the delay condonation application was in fact not applicable to the facts & circumstance of the case and its application, as it was governed by the law and provisions applicable in the State of Gujarat.
6. In the result the petition succeeds. The order impugned dated 29/7/2010 made in Misc. Civil Application No. 189 of 2010 is hereby quashed and set aside. The matter is remanded back to the concerned Court to decide Misc. Civil Application No. 189 of 2010 afresh, in view of the relevant prevalent provision applicable in the State of Gujarat in so far as Section 17 of Payment of Wages Act 1936 is concerned. The concerned Court shall decide delay condonation application on its own merits, after giving opportunity to both the sides. Rule made absolute to the said extent. No order as to costs.
7. It is further clarified that, this Court is not expressing any opinion on the challenge to the main order as the same shall not survive in view of the fact that now the matter is remanded back o the question of deciding delay condonation application."Page 13 of 17 Downloaded on : Wed Sep 01 05:04:53 IST 2021
C/SCA/13557/2020 JUDGMENT
9. Having gone through the order, which is under challenge by way of this petition and having considered the provisions of Section 17 of the Payment of Wages Act, 1936, this Court has noticed that Section 17 also provides for filing an appeal, first the employer is required to deposit the amount before the authority as provided under Section 17 and once that amount is deposited and the certificate to that extent is issued and the same is required to be accompanied with Appeal, then only, the appeal can be considered. In the instant case, though the order was passed on 31st August, 2018, since then no appeal is preferred and the petitioner has not deposited any amount as stated by Ms.Asmita Patel, learned Assistant Government Pleader, on instructions. Section 17 further provides that the appeal is required to be preferred within 30 days from the date of the order and therefore, considering the fact that the order is dated 31st August, 2018, 2 years have already gone, the amount awarded by the learned Presiding Officer, Page 14 of 17 Downloaded on : Wed Sep 01 05:04:53 IST 2021 C/SCA/13557/2020 JUDGMENT Labour Court, Valsad is not deposited by the petitioners and also considering the fact that the amount awarded is only Rs.20,354.40 by the authority under the Payment of Wages Act, if the ratio laid down by the judgment as cited by Ms.Asmita Patel, learned Assistant Government Pleader in the case of Bavjibhai Dayabhai Solanki (supra), is binding upon this Court, the petitioner is required to be relegated to the remedy of appeal by preferring the appropriate application for condonation of delay. However, considering the peculiar circumstances of this particular petition, where the petitioner is directed to pay the amount of Rs.20,354.40 only, which is very small amount, if the petitioner is relegated to the competent Court to file the appeal, ultimately it would delay the legitimate payment of the workman. Further more, the amount awarded by the Presiding Officer, Labour Court, Valsad is very meager amount of Rs.20,354.40 and therefore, now at this juncture, after more than two years of the order under challenge is passed, Page 15 of 17 Downloaded on : Wed Sep 01 05:04:53 IST 2021 C/SCA/13557/2020 JUDGMENT if any liberty is given to the petitioner to prefer an appeal under Section 17, in that case, it would amount to putting the respondent workman to hardship for getting his legitimate outstanding amount of Rs.20,354.40. For such meager amount, the respondent workman cannot be made to suffer only because of the fact that the petitioner has not filed the appeal within prescribed limitation and in-stead, the petitioner challenged the said impugned order before this Court by way of this petition.
Therefore, the request of Ms.Asmita Patel, learned Assistant Government Pleader to grant permission to the petitioners to prefer the appeal under Section 17 by not entering into the merits, is rejected. However, the permission to prefer the appeal is rejected only because of smallness of the amount awarded by the authority under the Payment of Wages Act and therefore, since this order is passed considering the peculiar facts of the case, the same may not be treated as a precedent.
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C/SCA/13557/2020 JUDGMENT 10. Now, if the merits of the order under
challenge are examined, it can be seen that the order dated 31st August, 2018 is passed after considering the reply filed by the petitioners and after hearing the petitioner. Learned Presiding Officer, Labour Court, Valsad has considered the submissions made on behalf of the petitioners and after examining the evidences on record and other materials, the impugned order is passed. Therefore, on perusal of the order, it seems that the order dated 31st August, 2018 passed by the learned Presiding Officer, Labour Court, Valsad below Exhibit 41 in the Payment of Wages Act Application No.24 of 2010 is just, legal and proper and it cannot be said that the same is passed by the authority by committing any error and hence, does not call for any interference and therefore, the present petition is required to be dismissed and the same is dismissed. No order as to costs.
(NIRZAR S. DESAI,J) MOHMMEDSHAHID Page 17 of 17 Downloaded on : Wed Sep 01 05:04:53 IST 2021