Gujarat High Court
Shardaben Arvindkumar Dodia vs Industrial Jewels Pvt Ltd on 16 March, 2016
Author: K.M.Thaker
Bench: K.M.Thaker
C/CA/880/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR ORDERS) NO. 880 of 2016
In SPECIAL CIVIL APPLICATION NO. 872 of 2009
With
SPECIAL CIVIL APPLICATION NO. 872 of 2009
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SHARDABEN ARVINDKUMAR DODIA....Applicant(s)
Versus
INDUSTRIAL JEWELS PVT LTD....Respondent(s)
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Appearance:
MR ANILKUMAR D MARU, ADVOCATE for the Applicant(s) No. 1
MR JIGAR M PATEL, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 16/03/2016
ORAL ORDER
1. The captioned Civil Application No.880 of 2016 is taken out by applicant-original respondent. In connection with the present application, this Court passed order dated 14.03.2016, which reads thus:-
" 1. An application filed by Ms.Shardaben A. Dodiya is listed at Serial No.1 in today's cause list. The said Civil Application is registered as Civil Application No.880 of 2016. However, on the file (of Civil Application No.880 of 2016) which is placed before the Court, there are two memo and both the memo to have been registered at the same number i.e. as Civil Application No.880 of 2016.Page 1 of 11
HC-NIC Page 1 of 11 Created On Fri Mar 18 00:52:12 IST 2016 C/CA/880/2016 ORDER One of the memo (of the Civil Application No.880 of 2016 is dated 06.01.2016, whereas second memo (of the application which is also registered as Civil Application No.880 of 2016) is dated 08.02.2016.
2. In the application memo dated 06.01.2016, the applicant has averred and prayed, inter alia, that:-
"3. Applicant submit that as per the above order dated 27.3.2009 of this Hon'ble Court read with Section 17B of the I.D.Act, 1947, applicant is entitled to receive such pay until final disposal of this petition No.872 of 2009, and if on completion of 60 years of age it is not entitled, then pension benefits under Pension Rules to be given, as the applicant is entitled pensionary benefits as per Pension Rules on completion of 60 years of age. The above Opponent failed to comply with the above order dated 27.03.2009 of this Hon'ble High Court, read with Pension Rules, and also failed to take action when the above applicant is to retire on completion of her 60 years of age i.e. on 31.05.2015.
4. Under the circumstances and facts and also in view of the above, the above applicant most respectfully and humbly prays this Hon'ble High Court to dispose of this petition No.872 of 2009 finally so that the applicant can get pensionary benefits or be pleased to pass the order, which this Hon'ble Court may deem fit to be granted in the interest of justice.
3. Whereas in memo of the application dated 08.02.2016, the applicant has prayed, inter alia, that:-
"A. The above Special Civil Application No.872 of 2009 filed by M/s. Industrial Jewels Pvt.Ltd., Bhavnagar may kindly be disposed of finally considering the circumstances and facts of the case on merits in favour of the Applicant so that the Applicant can get pensionary benefits or be pleased to pass the order which this Hon'ble High Court may deem fit to be granted in the interest of justice.Page 2 of 11
HC-NIC Page 2 of 11 Created On Fri Mar 18 00:52:12 IST 2016 C/CA/880/2016 ORDER B. The Applicant also filed Affidavit in reply dated 25.03.2009 (page - 61 to 66), also be pleased to consider the same and to pass the final order in favour of the Applicant (original Opponent) in the interest of justice."
4. When the application is called out and taken up for hearing, neither the applicant nor learned advocate Mr.Maru are present.
5. Mr.Patel, learned advocate for the original petitioner Special Civil Application No. 872 of 2009 is present.
6. Having considered the said two memo of the applications, which are registered as Civil Application No. 880 of 2016 and having regard to the fact that main petition i.e. Special Civil Application No. 872 of 2009 is pending for final hearing since more than 6 years, it appear that it would be appropriate to hear and decide the petition and the application together. Therefore, office is directed to list the petition in the cause list for final hearing on 16.03.2016.
7. Actually today even main petition i.e. Special Civil Application No. 872 of 2009 is also listed in the cause list along with Civil Application No. 80 of 2016, however, since learned advocate for the applicant or the applicant are not present, above direction is passed."
2. As mentioned in the order dated 14.03.2016, there are two memo of applications which are registered as Civil Application No.880 of 2016. In both the memo of applications, different reliefs are prayed for by the applicant, which Page 3 of 11 HC-NIC Page 3 of 11 Created On Fri Mar 18 00:52:12 IST 2016 C/CA/880/2016 ORDER are mentioned in above quoted order dated 14.03.2016.
3. The opponent i.e. original petitioner had taken out an application with a request that the interim relief granted vide order dated 27.03.2009 may be vacated in view of the fact that the respondent in the petition (i.e. present applicant) has crossed the age for superannuation.
4. This Court after considering the said request and relevant details passed order dated 24.02.2016, whereby the direction obliging the petitioner-employer to comply the condition under Section 17B of the Industrial Disputes Act, 1947, and to pay last drawn wages to the respondent i.e. present applicant came to be vacated. The relevant part of the said order dated 24.02.2016 reads thus:-
5. `The applicant in present application is original petitioner in Special Civil Page 4 of 11 HC-NIC Page 4 of 11 Created On Fri Mar 18 00:52:12 IST 2016 C/CA/880/2016 ORDER Application No. 872 of 2009. In the said petition, the applicant-petitioner has challenged award dated 02.05.2008, passed by learned Laobur Court, Bhavnagar in Reference (L.C.B.) No.86/89, whereby the learned Labour Court directed present applicant-petitioner to reinstate the opponent-respondent on her original post with continuity of service and to pay her 30% back-wages. By order dated 27.03.2009, the petition came to be admitted and by way of interim relief, the operation and implementation of the award is stayed on the condition that the petitioner shall comply Section 17B of the Industrial Disputes Act, 1947.
6. By this application, the applicant has claimed that after the said order dated 27.03.2009, it has been complying the requirements under Section 17B of the Act, however, now, there is no obligation to continue to pay last drawn wages to the respondent in accordance with Section 17B of the Act because the respondent-workman has, according to his own admission, attained the age prescribed for superannuation.
7. On the said ground, the applicant has prayed, inter alia, that:-
"7(a) be pleased to declare that the opponent is not entitled to get the benefit of Section 17-B of the Industrial Disputes Act, 1947 with effect from 17.05.2015, i.e. the date on which the opponent reached the age of superannuation and consequently be further pleased to vacate the direction contained in the order dated 27.03.2009 passed by this Hon'ble Court in Special Civil Application No. 872 of 2009, in so far as it directeds the applicant to comply with the provisions of section 17B of the Industrial Disputes Act, 1947."
8. So as to support and justify the said request, the applicant-petitioner has averred in the application that:-
"3. It is submitted that as per the record of the applicant company and letter dated Page 5 of 11 HC-NIC Page 5 of 11 Created On Fri Mar 18 00:52:12 IST 2016 C/CA/880/2016 ORDER 02.03.2015 addressed by the respondent workman to the petitioner company, the date of birth of the respondent workman is 17.05.1955 and he has therefore already reached the age of superannuation of 60 years on 17.05.2015. The respondent-workman has already reached the age of superannuation of 60 years on 17.05.2015.
4. The applicant states that with effect from 17.05.2015, i.e. the date on which the opponent reached the age of superannuation, the applicant has stopped paying wages under Section 17B to the opponent. In fact, the opponent has challenged the said action of the applicant by filing Civil Application in pending writ petition. However, the opponent has till today not circulated the aforesaid Civil Application.
5. It is submitted that the respondent workman cannot be reinstated in the petitioner company after 17.05.2015 as he has already reached the age of superannuation. The respondent workman is therefore not entitled to get wages under Section 17B of the ID Act after date of his superannuation i.e. 17.05.2015. The present application is therefore filed for vacating the direction to comply with the provisions of Section 17-B of the ID Act as per the order dated 27.03.2009 w.e.f. date of superannuation of the respondent workmaniI.e. 17.05.2015."
9. The applicant-petitioner has also relied on letter dated 02.03.2015 said to have been addressed by the respondent to the applicant- petitioner. The reliance is placed on the details mentioned in Paragaraph No.2 of the said letter dated 02.03.2015, which reads thus:-
"2. At this stage, I am to say and submit that my date of birth is 17.05.1955 and completing my age of 60 years on 17.05.2015 and thereby to retire on 31.05.2015. If the matter is not decided finally before 31.05.2015 and remains pending in the Hon'ble High Court, then I am entitled to receive the amount till final decision by the Hon'ble High Court of Gujarat as per their order, even if my retirement date is passed."Page 6 of 11
HC-NIC Page 6 of 11 Created On Fri Mar 18 00:52:12 IST 2016 C/CA/880/2016 ORDER
10. On the basis of above mentioned details, where the respondent seems to have mentioned that the date of her birth is 17.05.1955 and she would be completing 60 years of age on 17.05.2015. The applicant-petitioner has claimed that the respondent has attained the age prescribed for superannuation on 17.05.2015, and therefore, she is not entitled for the benefit available under Section 17B of the Act."
5. In this background, the applicant i.e. original respondent has taken out these two applications which are registered as Civil Application No.880 of 2016. By the order dated 14.03.2016, the Court clarified that the petition shall be heard on merits in view of the fact that main petition is pending since 2009.
6. In view of the said observation, any order with regard to the Civil Application No.880 of 2016 was not passed on 14.03.2016.
7. Today, when the application and the petition are called out, learned advocate for the applicant is not present.
8. This Court has noticed that since last three Page 7 of 11 HC-NIC Page 7 of 11 Created On Fri Mar 18 00:52:12 IST 2016 C/CA/880/2016 ORDER occasions i.e. when the order dated 24.02.2016 came to be passed, when the order dated 14.03.2016 came to be passed and on 22.02.2016, learned advocate for the applicant did not attend the hearing.
9. In the memo dated 06.01.2016 of Civil Application No.880 of 2016, the applicant has averred and stated in Paragraph No.4 that:-
"4. Under the circumstances and facts and also in view of the above, the above applicant most respectfully and humbly prays this Hon'ble High Court to dispose of this petition No.872 of 2009 finally so that the applicant can get pensionary benefits or be pleased to pass the order, which this Hon'ble Court may deem fit to be granted in the interest of justice."
10. Thus, the applicant has prayed that the main petition i.e. Special Civil Application No. 872 of 2009 may be heard and decided finally i.e. exactly what the Court proposed to do as mentioned in the order dated 14.03.2016. However, neither the applicant nor learned advocate for the applicant has attended the hearing. Page 8 of 11 HC-NIC Page 8 of 11 Created On Fri Mar 18 00:52:12 IST 2016 C/CA/880/2016 ORDER
11. In view of the observations in the order dated 14.03.2016 which reflects the Court's decision to hear and decide the petition finally, the memo of application dated 06.01.2016 does not survive in view of the fact that the request made in this memo dated 06.01.2016 stands granted vide order dated 14.03.2016.
12. On 14.03.2016, the application was adjourned only with a view to give an opportunity to the applicant or learned advocate for the applicant to attend the hearing.
13. In light of the above discussion, Civil Application No.880 of 2016 (memo dated 06.01.2016) stands disposed of.
14. Now, so far as second memo registered at same number is concerned i.e. memo dated 08.02.2016, the applicant has prayed, interalia, that the main petition i.e. Special Civil Application No. Page 9 of 11 HC-NIC Page 9 of 11 Created On Fri Mar 18 00:52:12 IST 2016 C/CA/880/2016 ORDER 872 of 2009 may be finally disposed of and the affidavit dated 25.03.2009 may be taken into account.
15. In view of the foregoing discussion and the order dated 14.03.2016, the same memo dated 08.02.2016 would also not survive.
16. Consequently and in view of the decision reflected from the order dated 14.03.2016, whereby the Court directed the office to list the main petition along with the Civil Application, so that it can be finally heard, this Civil Application No.880 of 2016 stands disposed of.
17. In view of the order dated 14.03.2016, main petition petition is listed for hearing today. However, it is noticed that learned advocate for the respondent is not present. The respondent is also not present.
Page 10 of 11 HC-NIC Page 10 of 11 Created On Fri Mar 18 00:52:12 IST 2016 C/CA/880/2016 ORDER
18. Under the circumstances, office is directed to list Special Civil Application No.872 of 2009 in the cause list for final hearing on 18.03.2016.
19. In view of the request made by the applicant in above mentioned application, it is clarified that on the said date, the petition may be heard peremptorily. A copy of this order may be placed on record of Special Civil Application No. 872 of 2009.
(K.M.THAKER, J.) Girish Page 11 of 11 HC-NIC Page 11 of 11 Created On Fri Mar 18 00:52:12 IST 2016