Gujarat High Court
Shailendra Kalidas Solanki vs Gujarat Agro Industries ... on 8 December, 2015
Author: K.M.Thaker
Bench: K.M.Thaker
C/CA/3642/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR DIRECTION) NO. 3642 of 2015
In
SPECIAL CIVIL APPLICATION NO. 625 of 2009
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SHAILENDRA KALIDAS SOLANKI....Applicant(s)
Versus
GUJARAT AGRO INDUSTRIES LTD....Opponent(s)
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Appearance:
MR HARDIK B SHAH, ADVOCATE for the Applicant(s) No. 1
MR BIREN A VAISHNAV, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 08/12/2015
ORAL ORDER
1. When the application is called out and taken up for hearing, learned advocates for the applicant and the opponent are not present.
2. It is informed that learned advocate for the opponent has filed sick note.
3. However, in present application, considering the nature of the request made by the applicant, it is considered appropriate to decide the application with appropriate order, even in Page 1 of 9 HC-NIC Page 1 of 9 Created On Sat Dec 12 00:43:31 IST 2015 C/CA/3642/2015 ORDER absence of learned for the applicant and though learned advocate for the opponent has filed sick note.
4. The order proposed to be passed would not adversely affect the interest of the corporation. However, if for any reason or on any ground, the opponent, i.e. original petitioner feels that the order passed in present application adversely affects its interest in any manner, then the opponent, i.e. original petitioner may take out appropriate application seeking vacation or modification of this order.
5. In this application, the applicant has prayed, inter alia, that:
"7(B) YOUR LORDSHIPS may be pleased to direct the Respondent to pay the applicant the benefit under Section 17B of the Industrial Disputes Act, from the date of order of labour court award: 28/07/2008."
6. It emerges from the prayer made in this application that the applicant claims that he should be paid last drawn wages in accordance with the provision of section 17B of the Page 2 of 9 HC-NIC Page 2 of 9 Created On Sat Dec 12 00:43:31 IST 2015 C/CA/3642/2015 ORDER Industrial Disputes Act, 1947.
7. The said relief is prayed for in view of the fact that the petition challenging the award passed by the learned Labour Court is admitted by the Court and the interim relief staying the operation and implementation of the award is passed by this Court.
8. Before proceeding further, it is relevant and necessary to note that the learned Labour Court decided the industrial dispute raised by the applicant and passed award dated 28.7.2008 in Reference (LCA) No.1033 of 2000. By the said award, the learned Labour Court directed the petitioner, i.e. present opponent to reinstate the applicant, i.e. original respondent on his original post with continuity of service and to pay backwages @ 25%. The original petitioner, i.e. present opponent felt aggrieved by the said award. Therefore, it filed the writ petition, i.e. Special Civil Application No.625 of 2009. Page 3 of 9 HC-NIC Page 3 of 9 Created On Sat Dec 12 00:43:31 IST 2015 C/CA/3642/2015 ORDER
9. This Court admitted the said petition and granted adinterim relief vide order dated 27.1.2009 and the implementation and operation of the award dated 28.7.2008 was stayed. The said order dated 27.1.2009 reads thus:
"Mr. H.J.Nanavati, learned advocate for the petitioner submits that scope of the Labour Court in exercise of power under Section 11A of Industrial Disputes Act, 1947, is circumscribed by the decision of the Apex Court.
Hence, Rule.
Ad interim relief in terms of para 6(D). Notice as to interim relief returnable on 23rd February, 2009."
10. Subsequently, vide order dated 1.5.2009, ad interim relief was confirmed and the COurt directed that it would continue during pendency of the petition. Since then, i.e. after the order dated 27.1.2009 and/or order dated 1.5.2009 came to be passed, the applicant never came forward with appropriate affidavit and undertaking declaring that he is not gainfully employed. The applicant neither filed such an affidavit / undertaking nor preferred any application seeking direction for payment of last drawn wages in consonance with section 17B of the Act, for Page 4 of 9 HC-NIC Page 4 of 9 Created On Sat Dec 12 00:43:31 IST 2015 C/CA/3642/2015 ORDER almost 6 years.
11. Now, for the first time, the original respondent, i.e. present applicant has taken out present application.
12. The original respondent has filed affidavit opposing this application. The opponent has opposed the application on the ground mentioned in paragraph No.1 of its reply affidavit. The said paragraph No.1 reads thus:
"1. I say that I have read a copy of the application filed by the applicant for the claiming the benefits of section 17B from the date of the award i.e. from 28.07.2008. I say that the application is totally misconceived and grossly belated. I say that the application is filed on 19.3.2015 i.e. approximately after 7 years from the date of the award and therefore there is a strong presumption that the applicant - original respondent was gainfully employed and was therefore in no need of the benefits of section 17B which are in the nature of a subsistence allowance pending the petition of the employer before the Honourable High Court."
13. The opponent has opposed the application on certain other grounds as well which are equally relevant. The opponent has asserted in the reply affidavit that:
"2.I say that the applicant has not explained any reasons or brought to any sufficient cause to show as to why the applicant did not move the Honourable Court for 7 years and has only filed this application with an Page 5 of 9 HC-NIC Page 5 of 9 Created On Sat Dec 12 00:43:31 IST 2015 C/CA/3642/2015 ORDER affidavit dated 13.3.2015 stating that the applicant is unemployed.
3. I say that the award of the Labour Court was challenged by filing the Special Civil Application No.625 of 2009 on 22.01.2009 and was moved on 27.1.2009 and this Honourable Court granted adinterim relief staying the implementation and operation of the award of the Labour Court. On 23.2.2009 though the applicant was served no steps were taken by the applicant to appear before this Honourable Court and contest the petition. I say that the applicant was aware and had engaged an advocate to appear on his behalf and knew that the petition challenging the award of the Labour Court was pending and an interim relief was operating. I say that on reading the order dated 1.5.2009 it is clear that even at the initial stage no action was taken by the applicant to get the petition heard on interim relief nor did he move any application.
4. I say that the applicant had been dismissed from service pursuant to a departmental proceeding on serious charges and therefore the Labour Court could not have exercised the powers under section 11A of the Industrial Disputes Act, 1947. I say that more than 7 years after the award and six years after the petition was admitted the applicant who would have otherwise retired from service on attaining the age of superannuation in May 2013 as his date of birth as per his service record and as per his own application is 16.5.1955."
14. There is substance in the contentions raised by present opponent, i.e. original petitioner.
15. However, once the workman declares on oath that he is not gainfully employed, then the obligation to pay last drawn wages in consonance with section 17B would arise and such request on ground of delay cannot be denied, except for the period during which any step was not taken by the Page 6 of 9 HC-NIC Page 6 of 9 Created On Sat Dec 12 00:43:31 IST 2015 C/CA/3642/2015 ORDER workman.
16. In present case, it is undisputed that after the date when the award came to be passed, i.e. on 28.7.2008 and/or after the order admitting the petition came to be passed, i.e. on 27.1.2009 or the subsequent order dated 1.5.2009, the applicant herein, i.e. original respondent has not taken any steps to claim benefit under section 17B and until now he did not file any affidavit declaring that he is not gainfully employed.
17. Such affidavit is made and filed for the first time on 13.3.2015 and copy thereof came to be served to the opponent, i.e. original petitioner pursuant to the order dated 31.3.2015 directing the office to issue Notice.
18. Thus, the obligation to pay wages under and in accordance with the provision of section 17B has arisen after 13.3.2015 and on and from 31.3.2015.
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19. Of course, it is open to the respondent to find out as to whether the factual assertion made by the applicant is correct or not and as to whether he is actually unemployed or not.
20. Subject to production of such proof, in view of the affidavit made by the applicant (page 5 of present application), the obligation to pay wages in consonance with section 17B of the Act has arisen and the said statutory requirement should be complied by the original petitioner. Therefore, following order is passed.
21. The opponent will start paying last drawn wages to the applicant - original respondent. Such amount shall be paid with effect from 1.4.2015. Arrears of the amount with effect from 1.4.2015 to 30.11.2015 to be paid within period of four weeks. Regular payment towards the said benefit shall be paid to the applicant - original respondent from the date of present order.
22. If the opponent - original petitioner desires Page 8 of 9 HC-NIC Page 8 of 9 Created On Sat Dec 12 00:43:31 IST 2015 C/CA/3642/2015 ORDER any modification or vacation of the order, it will be open to the opponent to file appropriate application.
With the aforesaid clarifications and observations, the application is disposed of.
(K.M.THAKER, J.) Bharat Page 9 of 9 HC-NIC Page 9 of 9 Created On Sat Dec 12 00:43:31 IST 2015