Gujarat High Court
Gopalbhai Meghajibhai Kantia vs Superintending Engineer on 11 April, 2008
Equivalent citations: 2009 LAB. I. C. (NOC) 163 (GUJ.), 2009 (2) AJHAR (NOC) 569 (GUJ.)
Author: H.K. Rathod
Bench: H.K. Rathod
JUDGMENT H.K. Rathod, J.
1. Heard the learned advocates appearing on behalf of respective parties.
2. In main Special Civil Application No. 19234 of 2006, the original petitioner has challenged the award passed by Labour Court in Reference No. 459 of 1987 dated 13th April 2006. The Labour Court has set aside the termination order dated 25th December 1985 and instead of that, five increments are stopped without cumulative effect and directed to pay 75% backwages of interim period with continuity of service to respondent workman with consequential benefits. The Labour Court has also directed to original petitioner to take decision about sick leave for the period from 17th August 1983 to 31st August 1985.
3. This Court, initially, issued notice returnable on 6th October 2006 on 8th September 2006 and meanwhile, this Court has directed to petitioner to reinstate the respondent workman in service on or before returnable date. Meanwhile, award is stayed qua backwages till 6th October 2006. Thereafter, on 5th February 2007, following order is passed by this Court (Coram : R.M. Doshit, J.).
Heard the learned advocate.
Rule. Mrs. Pahwa waives service of rule. Pending this petition, there shall be interim stay in terms of para 10[C].
R & P be called for.
4. This order has been passed after about five months from the date of first order 8th September 2006. In pursuance of the order passed by this Court on 8th September 2006, the original petitioner has reinstated the workmen in service on 14th January 2007.
5. Apart from this controversy and inaction on the part of the petitioner, the facts remain that stay is operating against the reinstatement and workman's service was again terminated by the petitioner. Therefore, present Civil Application is filed by present application-original respondent with a prayer to grant the benefit under Section 17B of the Industrial Disputes Act, 1947. A specific averments made in Para 7 of this application which is quotted as under:
7. It is submitted that as per the provisions of Section 17B of the Industrial Disputes Act, the applicant is entitled for the benefits under the provisions of Section 17B of Industrial Disputes Act. The applicant submits that the applicant has filed an affidavit to the effect that the present applicant is not gainfully employed from the date of termination till date. The applicant submits that despite his best efforts, the applicant could not get gainful employment from the date of termination till date. Annexed hereto and marked as ANNEXURE 'E' to this application is the copy of the affidavit filed by the applicant to the effect that he is not gainfully employed.
6. The averments made in this application are objected by the original petitioner by filing the affidavit-in-reply. It is necessary to note one important fact that Civil Application No. 8968 of 2007 filed by present applicant before this Court after the order of co-ordinate bench dated 5th February 2007. This Court has directed the petitioner to reinstate the workman on or before 31st July 2007 by order dated 16th July 2007, against which, the Letters Patent Appeal is filed by original petitioner and stay was obtained. The order dated 16th July 2007 passed in Civil Application No. 8968 of 2007 is quoted as under:
1. Heard learned advocate Ms. Vinita Vinayak for M/s. Thakkar Associates for the applicant and learned advocate Mr. S.N. Sinha for respondent.
2. In main SCA No. 19234 of 2006, respondent - original petitioner has challenged the award passed by Labour Court dated 13.4.2006 in Reference No. 459/1987, whereby the Labour Court has directed to original petitioner to reinstate the workman with 75% back wages with continuity and with consequential benefits.
3. This Court has issued notice on 8.9.2006 and directed the petitioner to reinstate the respondent workman in service on or before returnable date and award is stayed qua back wages till 6.10.2006. Thereafter, the matter was listed before coordinate Bench of this Court (Coram : Miss Justice R.M. Doshit) for further hearing on 5.2.2007 where following order is passed:
Heard the learned advocate.
Rule. Mrs. Pahwa waives service of rule. Pending this petition, there shall be interim stay in terms of paragraph 10 [C].
R & P be called for.
4. In pursuance to the aforesaid order, reinstatement is also stayed by this Court. This order is passed on 5.2.2007 after hearing learned advocates appearing for the respective parties.
5. Present application is filed by the applicant - original respondent with a prayer to grant the benefit of Section 17B of the I.D. Act, 1947 as reinstatement has been stayed by this Court. Therefore, according to applicant, he is entitled the full wages last drawn by him from the original petitioner.
6. Specific averments made in the application by the applicant in Para.5 that applicant has filed affidavit to the effect that present applicant is not gainfully employed from the date of termination till date and despite his best efforts, applicant could not get employment from the date of termination till date. No counter is filed to this application by original petitioner.
7. It is necessary to note that in pursuance to the first order dated 8.9.2006, the present applicant was reinstated in service by the original petitioner on 17.1.2007 as Jr. Assistant Savarkundla Rural Sub Division of Amreli Circle and after second order dated 5.2.2007, his service was terminated by order dated 12.3.2007.
8. The order of termination / dismissal is dated 25.7.1985. How much amounts will be received by the respondent on the basis of full wages last drawn is not clear from the record. But, in 1985, probably, the salary was less than Rs. 1000/-, now, if the respondent is to receive such amount under guise of Section 17B of the I.D.Act,1947, the respondent would not be able to maintain the family. Section 17B of the I.D.Act,1947 provides full wages last drawn. Therefore, respondent at the most can get only last drawn salary which probably must be less than Rs. 1000/- looking to the salary at the relevant time. However, it is not reflected from the award that what was the salary received by the respondent from the petitioner. This Court while exercising the power under Article 226 can grant the current wages or minimum wages or enhance the wages with condition to refund the same in case when the employer succeeds in the petition. Therefore, under Section 17B of the I.D.Act,1947, this Court can enhance the wages or direct the petitioner to pay minimum wages but, according to my opinion, it would be futile to do so because the petitioner has initially reinstated the respondent workman in service and for that there was no objection raised by petitioner, and in spite of granting the relief under Section 17B of the I.D.Act,1947, the respondent will receive the wages of the year 1985 by which he may not able to maintain the family of the respondent.
9. Therefore, considering the entire facts and circumstances and subsequent application under Section 17B of the I.D. Act, 1947, according to my opinion, looking to the date of dismissal-25.7.1985, it is not proper for this Court to pass order under Section 17B of the I.D.Act,1947 because passing such order amounts to forced labour the applicant drawing a salary, which was received by him in the year 1985, in the year 2007. Therefore, it is not proper for the Court to pass an order while granting the relief which is ultimately not helpful to the respondent. The relief of Section 17B of the I.D.Act,1947 can be granted when there is vehement opposition by the petitioner about reinstatement of the workman concerned. Such opposition is not here as earlier order was carried out by the petitioner. Therefore, according to my opinion, in the interest of justice and keeping in mind the salary for the year of 1985 by which the respondent would not be able to maintain the family in the year 2007, the petitioner is directed to reinstate the respondent workman in service on or before 31.7.2007.
10. In view of the aforesaid observations and directions, present application is disposed of.
11. The interim order passed by this Court shall remain continued qua back wages and order of reinstatement which is passed by this Court today is subject to final out come of the main petition.
7. The applicant has filed separate affidavit, where, specific averments are made at Page 15-Para 1 which is quoted as under:
1. I state that I am not gainfully employed elsewhere from the date of award dtd. 13.04.2006 passed by the Labour Court, Bhavnagar in Reference (LCB) No. 459/87 till today. I have no any other source of income. I am entitled to the benefits under the provisions of Section 17B of Industrial Disputes Act.
8. The affidavit-in-reply is filed by original petitioner, where, certain facts have been highlighted that applicant is having 100 Bighas land and agricultural activities and also earning high income from agricultural activities. Therefore, he is not entitled the benefit of Section 17B of the ID Act, 1947. The affidavit-in-rejoinder is filed by applicant. In Para 2 and 3, the facts are denied by applicant. Against which, affidavit-in-reply to the rejoinder is also filed by original petitioner, where, averments are made that false statement is made by applicant. Therefore, some serious action is to be taken against the present applicant.
9. I have considered the pleadings of both the parties and also considered the submissions made by both the learned advocates. The question is that whether workman is entitled the benefit under Section 17B of the ID Act, 1947 or not. The award of reinstatement with 75% backwages has been stayed by Division Bench of this Court. Therefore, workman is entitled the last drawn wages if he is unemployed and not employed any establishment and receiving adequate remuneration under Section 17B of the Industrial Disputes Act, 1947.
10. I have gone through the affidavit-in-reply of the petitioner and also rejoinder of the petitioner. The original petitioner has no where disclosed the facts that workman is employed in any establishment and receiving adequate remuneration from such establishment. The Section 17B is a mandate against the employer when order of reinstatement is passed by Labour Court and if it is challenged before the higher forum by employer, then, workman is entitled the benefit under Section 17B of the Industrial Disputes Act, 1947 provided that he is unemployed and not employed in any establishment and not receiving adequate remuneration from that establishment. This fact is to be proved by employer to the satisfaction of this Court by concrete evidence that workman is employed in any establishment. Looking to the language of Section 17B, it is a duty of the employer to prove aforesaid facts by producing concrete evidence before this Court to the satisfaction of this Court. According to my opinion, just to highlight sound financial family background of the concerned employee and also the highlight the properties belongs to family or concerned workman have no any adverse effect in respect to the claim of workman under Section 17B of the ID Act, 1947. For the employer, a very limited scope is to prove before this Court by concrete evidence to the satisfaction of this Court that workman is employed in any establishment and receiving adequate remuneration. If employer is failed to do so, then, it is a legal obligation of the employer to pay 17B wages to the respondent workman.
11. This aspect has been examined by this Court in case of Ramprakash R. Upadhyay v. Manager, Rang Pharmaceuticals Industries in Civil Application No. 7740 of 2007 in Special Civil Application No. 24778 of 2006 dated 2.4.2008. The following observations are relevant, therefore, quoted as under:
Heard learned Advocate Mr. PH Pathak for the applicant original workman and Mr. JV Japee, learned Advocate for the opponent original petitioner first party.
Main matter being SCA No. 24778 of 2006 has been filed by the original petitioner challenging award made by the labour court, Bharuch in Reference (LCB) No. 19 of 1997 dated 31.7.2006 wherein the labour court has granted reinstatement with 40% back wages for interim period. In the said petition, rule has been issued by this Court on 30.11.2006 and ad. interim relief has been granted by this Court but on 12.3.207, ad interim relief in terms of para 8(b) was confirmed subject to compliance of Section 17B of the ID Act, 1947, meaning thereby, reinstatement has been stayed by this Court. Order of dismissal/discharge/termination is dated 18.10.1996 and more than 12 years have passed from the date of dismissal. Respondent workman is suffering from cancer as per the observation made by the labour court in para 2 of award after considering the statement of claim filed by the workman.
Present civil application has been filed by the workman with a prayer to grant benefit of Section 17B of the ID Act, 1947 as the reinstatement has been stayed by this Court and he is without work, not gainfully employed in any establishment and he is willing to work and not gainfully employed and not receiving any remuneration from any establishment. Some miscellaneous work is being done by his wife and accordingly, he is maintaining his family.
Present civil application has been opposed by the present opponent by filing reply to this civil application page 5, by one Shri Pareshbhai J. Shah contending inter alia that the workman is doing building construction business and working as contractor. The opponent has relied upon the proceedings of civil suit No. 256 of 2006 and also criminal complaint under Section 138 of the Instruments Act. Learned Advocate Mr. Japee has made reference to page 8 a suit filed by the workman wherein it is mentioned that he is having contract to construction of building. He relied upon the affidavit dated 25.7.2006 wherein the workman has mentioned that he is working and also doing the contract work. Page 13 is also containing same facts as mentioned in affidavit dated 25.7.2006. Then, learned Advocate Mr. Japee relied upon page 16 which is a criminal case No. 829 of 1999 filed by the present workman wherein business has been shown as his occupation. It has been stated therein that the complainant i.e. present workman is doing the business of supply of sand, bricks, grits etc. (carting agent). Except this evidence, learned advocate Mr. Japee has not pointed out any other document for justifying the defence of opponent that the workman is gainfully employed during the interim period and not entitled for the benefit of Section 17B of the ID Act, 1947.
Considering the facts of the present case, the workman was dismissed / discharged / terminated on 18.10.96. Award of reinstatement is dated 31.7.2006. Documents relied upon by learned advocate Japee is prior to date of award. One is dated 25.7.2006 which is an affidavit of the respondent workman. Affidavit of the workman under Section 17B of the ID Act, 1947 is dated 20th March, 2007 and the petitioner has not been able to point out by producing any document that subsequent to the affidavit under Section 17B of the ID Act, 1947 also, petitioner has been working in any establishment or has been earning by doing work in any establishment. In view of that, both the affidavits relied upon by learned Advocate Mr. Japee are relating to the period prior to the date of affidavit of workman under Section 17B of the ID Act, 1947 and also prior to date of Award. As such, it is having no relevancy because after the award, workman is entitled for the benefit under Section 17B of the ID Act, 1947. Criminal case of the year 1999 where the averment has been made on 11.5.1999 has nothing to do with the claim of the workman from the date of award under Section 17B of the ID Act, 1947, therefore, the employer shall have to prove gainful employment from the date of the award onward and not for the period prior to the date of the award. There is no evidence produced by the petitioner which would prove gainful employment of the workman from the date of award onward. So, there is no evidence on record which would prove gainful employment of the workman from the date of award and for subsequent period. Record produced by the original petitioner is not relevant and not giving clear factual position subsequent to the date of award of the labour court 31.7.2006 and the benefit under Section 17B of the ID Act, 1947 has to be given to the workman from the date of the award if the workman contends that he is unemployed, not gainfully employed in any establishment and receiving adequate remuneration and has remained uncontroverted as the employer has not been able to point out from any document that subsequent to the award dated 31.7.2006, workman has been engaged in business or employed in any establishment and is earning adequately therefrom. Therefore, in light of this fact, Section 17B of the ID Act, 1947 is required to be considered. Same is, therefore, reproduced as under:
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.
Considering the language employed in Section 17B of the ID Act, 1947, it is clear that the language thereof is mandatory in nature having some object to grant last drawn wages to the workman during the pendency of the proceedings in higher courts challenging reinstatement of workman. Considering the language of Section 17B of the ID Act, 1947, meaning of gainful employment is specified by the section itself, therefore, no other meaning could be imported or taken or applied while considering the gainful employment as mentioned in Section 17B of the ID Act, 1947. Provision itself is very much clear where it is provided that 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.
If the employer is able to satisfy the court that the workman workman had been employed and had been receiving adequate remuneration during any such period or part thereof, then, the matter would be covered by the proviso to Section 17B of the ID Act, 1947 but in the case before hand, the petitioner employer has not been able to prove that the present workman had been employed and had been receiving adequate remuneration during any such period or part thereof commencing from the date of the award. All the material produced by the petitioner is relating to the period prior to the date of award and not in respect of the date subsequent to the date of award and, therefore, considering the language of Section 17B of the ID Act, 1947 as it is, benefit of Section 17B of the ID Act, 1947 cannot be denied to the workman as the petitioner is not able to prove gainful employment of the workman for the period subsequent to the date of award 31.7.2006 in the establishment.
Learned Advocate Mr. Japee has relied upon two decisions of the apex court as under while submitting that the workman is not entitled for the benefit of Section 17B of the ID Act, 1947.
(1) in the matter of North East Karnataka Road Transport Corporation v. Nagangouda.
(2) 2007 (13) Scale 760 in the matter of Niranjan Cinema v. Prakash Chandra Dubey and Anr. 2007 AIR SCW 7654.
I have considered the two decisions as above relied upon by learned Advocate Mr. Japee. In the decisions as aforesaid relied upon by the learned Advocate Mr. Japee, the apex court has considered as to whether the self employment could be considered as gainful employment or not while examining the question of back wages for interim period wherein challenge by the workman was against the termination. Apex court has observed that the employee is having betel shop but it was not clear how much amount was earned by him. Amount which has been earned were not sufficient to make both ends met. IN absence of earning from betel shop, apex court has granted 50% back wages for interim period.
In the aforesaid two decisions referred to and relied upon by the learned Advocate Mr. Japee, the apex court was not considering matter under Section 17B of the ID Act, 1947 and was not considering the self employment or gainful employment or employment in any establishment in the context of the language employed in Section 17B of the ID Act, 1947 but the apex court considered the question of back wages is to be granted to the concerned employee or not. While examining the question of back wages, there is discretionary power with the court to grant or not to grant back wages if gainful employment is proved by the employer. There is no straight jacket formula for grant of back wages. There is no section or any provision which would control the question of back wages but it is based on the principles laid down by the apex court from time to time. Such discretionary powers are not with the court while examining the matter under Section 17B of the ID Act, 1947, therefore, while examining matter under Section 17B of the ID Act, 1947, court is not having such discretion as it has been controlled by Section 17B of the ID Act, 1947. Therefore, this Court has no discretion to deny benefit under Section 17B of the ID Act, 1947 if the workman has been satisfying the conditions incorporated in Section 17B of the ID Act, 1947 and the employer has been unable to point out that the workman has been employed in any establishment for any period subsequent to the date of award and receiving adequate remuneration.
In both the cases issue which was examined by the apex court was in respect of the claim of back wages for interim period and not examined the issue whether self employment is to be considered as gainful employment or not while considering application Under Section 17B of the ID Act, 1947. Therefore, in view of peculiar facts of the present case governed by Section 17B of the ID Act, 1947, aforesaid two decisions referred to by learned Advocate Mr. Japee are not applicable to the present case.
This Court had an occasion to consider the question of gainful employment while examining the provisions of Section 17B of the ID Act, 1947 in case of University Granth Nirman Board v. Udesinh Togaji Solanki reported in 2003 (1) GLH 626. View taken by this Court has been confirmed by two Division Bench of this Court in case of Bhanulal Khimjibhai Solanki v. Deputy Executive Engineer reported in 2005-I-LLJ 655, & in case of Cyanides and Chemicals Company v. Mansingh Mangalram Varma reported in 2006-II-LLJ 191 and recently it has been considered by this Court in case of M.J. Patel v. Tata Chemicals Ltd. reported in 2008 I CLR 588, where it has been held that the self employment or doing miscellaneous work can not considered to be gainfully employment for denying the benefit Under Section 17B of the I.D. Act 1947. Therefore, considering the aforesaid decisions of this Court relating to Section 17B of the ID Act, 1947 confirmed and affirmed by the Division Bench of this Court in aforesaid two decisions and also in view of the fact that the employer is not able to point out that the workman has been gainfully employed in any establishment subsequent to the date of award by producing any concrete evidence, according to my opinion, the workman herein is entitled for the benefit of Section 17B of the ID Act, 1947 and in view of that, contentions raised by learned Advocate Mr. Japee on behalf of the employer are rejected and workman is entitled for such benefit Under Section 17B of the ID Act, 1947 from the date of the award 31st July 2006 during the pendency of this petition.
Here, it is also required to be noted that the workman is prepared to work with the petitioner provided that the petitioner is ready and willing to provide him work by reinstating him in service during the pendency of the petition. However, petitioner is not prepared till this date to do so and petitioner on one hand is enjoying fruits of stay against the award and yet not willing to pay last drawn wages to the workman. Once, stay is granted against the reinstatement, then, as per the language of Section 17B of the ID Act, 1947, it is obligatory for the employer to pay full wages last drawn by the workman but employer is not accepting it and raising contention that the workman is having his own business of construction and, therefore, not entitled for such benefit and that too not relating to the period subsequent to the date of award but for the period prior to the award 31.7.2006. So, employer is enjoying interim relief against the reinstatement but workman is not able to enjoy starvation and in such circumstances, he is requiring benefit under Section 17B of the ID Act, 1947 considering the objects thereof for enabling him to maintain himself and his family and, therefore, approach of the employer to refuse to reinstate workman on one hand and then to deny benefit of Section 17B of the ID Act, 1947 is contrary to common sense and logic and, therefore, submissions made by learned Advocate Mr. Japee cannot be accepted and same are, therefore, rejected. However, if the wisdom prevails subsequently at any time, then, it will be open for the petitioner to reinstate the workman in service without prejudice to his rights and contentions in this petition but till then, petitioner shall have to strictly comply with the mandate of Section 17B of the ID Act, 1947 in letter and spirit.
Therefore, in view of the above discussion, it is directed to the original petitioner opponent herein to pay full wages last drawn by the workman inclusive of maintenance allowance if any available to the workman under the service rules to the workman with effect from 31st July,2006 to 31.3.2008 within one month from the date of receipt of copy of this order and thereafter to continue to make such payment of last drawn wages to the workman regularly every month till the main matter is heard and decided by this Court finally.
With these observations and directions, this civil application is disposed of with no order as to costs.
12. In light of the observations made by this Court as referred above, there is a vast difference to consider the question of backwages and question of granting benefits under Section 17B of the ID Act, 1947. In case of backwages, there is no straight jacket formulate which are to be granted or not to be granted, but, while considering the application under Section 17B, a straight jacket formula incorporated in Section itself must have to be proved by employer, failing which, 17B will operate against the employer. These are the difference between two which has been considered by this Court and any kind of employment like self-employment cannot be considered to be a gainful employment while examining the matter under Section 17B of the ID Act, 1947.
13. It is necessary to highlight the list of events of this case, because, one workman who was working as a Junior Assistant in Gujarat Electricity Board after completed, more than five years service remained absent, his service was terminated under Service Regulation 113 on 25th July 1985. After a long legal battle about 23 years, he got order of reinstatement in his favour. Initially, because of order passed by this Court on 8th September 2006, he was reinstated in service on 14th January 2007. It is not the case of petitioner that no post is available and reinstatement is impossible. The charge against workman not relating to dishonesty, misappropriation and misbehaviour. For absence without prior permission, the service of workman was terminated. No such allegation made against workman about doubtful integrity of workman. It is not the case of petitioner that work is not available, post of junior assistant is not vacant or abolished, because, order dated 8th September 2006 was complied with by petitioner after reinstating the respondent workman on 14th January 2007. On 5th February 2007, according to respondent workman, without disclosing the facts of order dated 8th September 2006, is already complied with, interim relief was obtained against reinstatement. Therefore, petitioner being a State Authority not acted in a fair manner with poor workman. It is also necessary to note one important fact that order dated 8th September 2006 giving direction to petitioner to reinstate the respondent workman which was complied with by petitioner, then, where is the question to obtain stay against reinstatement. The direction of one coordinate bench normally cannot be stayed by another coordinate bench. But, learned advocate Ms. Vinita Vinayak has submitted that on 5th February 2007, this fact was not brought to the notice of Hon'ble High Court and interim order has been obtained against reinstatement. Section 17B operates a moment petition is filed challenging the reinstatement by employer, but, it cannot consider to be a license for the employer not to reinstate the workman though possibility of reinstatement is in existence. Therefore, whenever the reinstatement is possible and against the reinstatement, no case is made out by the employer, then, first, employer should have to reinstate the workman in service and question of backwages can be stayed by this Court. On 8th September 2006, when this Court has directed the petitioner to reinstate the workman, at that occasion, it was not opposed by petitioner. Not only that, but, interim order of this Court was not challenged by petitioner to higher forum, means, order of 8th September 2006 is complied fully, then, a moment, bench has been changed and petitioner being a State Authority took advantage without informing the coordinate bench that interim direction of this Court is already complied by them and workman is in service. If the facts of reinstatement is disclosed by petitioner, certainly, the coordinate bench may decline the relief against reinstatement, but, petitioner was interested to obtain the order against the reinstatement. The sound financial condition and family background is disclosed by petitioner against the respondent workman. Apart from that, still workman is prepared to work with petitioner and he had worked from 14th January 2007 upto 12th March 2007. Therefore, when workman is prepared to work with the petitioner and petitioner employer has refused to reinstate the workman, then, it is a duty of employer to pay last drawn wages to the workman unless employer is able to prove gainful employment of workman, meaning thereby that, workman is employed in any establishment and receiving adequate remuneration. Therefore, in this case, respondent workman is prepared to work with the petitioner, but, petitioner refused to reinstate the workman, then, petitioner must have to establish the facts to the satisfaction of this Court that workman is gainfully employed in any establishment and receiving adequate remuneration. Therefore, this Court has power at the time of passing interim order whether reinstatement can be directed or not and on 8th September 2006, this discretionary powers have been exercised after hearing Mr. Sinha, learned advocate. This Court has directed the petitioner to reinstate the workman, but, subsequently, as per order dated 5th February 2007, service was terminated on 12th March 2007. Thereafter, this Court has passed another order on 16th July 2007 which has been stayed by Division Bench of this Court. The petitioner being an employer not entitled to take advantage of legal lacuna, because, a termination of 1985, last drawn salary may be about Rs. 1,000/- being a meager amount, now-a-days, the salary of the workman was more than Rs. 10,000/-, how he will be able to maintain family in a such meager amount. If this theory is encouraged by the Court, then, employer is happy to pay Rs. 1,000/- per month to the workman without taking work from him just to demoralize the employee against the legal fight instead of paying regular wages after reinstatement. The theory which has been adopted by employer who is State Authority is worst then private employer. So long, employer has not established before this Court that reinstatement is impossible, then, employer shall have to reinstate the workman and if he refused to reinstate the workman, then, he should have to pay regular and current wages to such workman. In this Case, reinstatement is complied and obtained stay against reinstatement, meaning thereby, petitioner has refused to reinstate the workman, then, workman is entitled the regular salary from the petitioner, because, petitioner is not able to establish the facts and there is no such serious misconduct committed by workman that reinstatement is absolutely not possible. Therefore, merely denying or refusing the reinstatement, petitioner employer cannot take or get advantage of making payment of last drawn wages of 1985. This is not the intention of Legislation. Section 17B incorporated in a case when reinstatement is not possible. According to employer or if Court feels that looking to the facts and circumstances, reinstatement cannot be directed, then, 17B is considered to be a proper relief. But, when reinstatement is possible and employer has failed to establish circumstances of reinstatement is impossible and Court feels that reinstatement can be directed, then, relief under Section 17B of the Industrial Disputes Act, 1947 is not proper or adequate, but, regular wages or current wages is the only option with the employer when reinstatement is refused by employer without any justification. In this case, the reinstatement is refused by employer without any valid, genuine and reasonable justification, which proves that petitioner employer wants to harass the workman by taking shelter of legal proceedings. Therefore, just to give details about entire history of the case from the date of training given by workman as apprentice from 1979 to 2008 which is very relevant for the purpose of incident, the harassment made by employer to the workman while taking shelter of legal proceedings, therefore, the same are quoted as under:
26.09.1979 : Respondent-workman started apprentice training.
28.09.1980 : Respondent-workman completed apprentice training.
17.08.1983 to 21.07.1985 : Respondent unauthorisedly absented himself.
29.09.1984 : Charge served for departmental enquiry held; respondent absent.
20.04.1985 : Show-cause notice under Rule 113 issued to the respondent.
(Page-30) 25.07.1985 : Respondent's service terminated under Rule 113. (P. 33) 13.12.1985 : Reference made to Labour Court, Bhavnagar.(P. 18) 13.04.2006 : Date of Award, allowing reference partly. (Page:16-29) 05.09.2006 : Special Civil Application No. 19234 of 2006 is filed by employer seeking direction by way of quashing and setting aside the award dated 13.04.2006 passed by Labour Court.
08.09.2006 : In Special Civil Application No. 19234 of 2006, this Court (H.K. Rathod, J.) has directed to reinstate the respondent workman in services on or before returnable date meanwhile, impugned award is stayed qua backwages.
14.01.2007 : In pursuance of the order passed by this Court dated 8.9.2006, respondent workman was reinstated in services by employer.
05.02.2007 : This Court (Hon'ble Ms. Justice R.M. Doshit) has stayed the award passed by Labour Court in Special Civil Application No. 19234 of 2006.
12.03.2007 : The respondent workman was dismissed from service by employer.
12.03.2007 : The workman filed a Civil Application No. 9129 of 2007 for modification of order dated 5.2.2007.
29.06.2007 : Civil Application No. 8968 of 2007 is filed Under Section 17B of the I.D. Act, 1947 by workman.
16.07.2007 : The above CA is allowed by this Court vide order dated 16.07.2007 that "interim relief qua backwages and order of reinstatement which is passed by this Court today is subject to final outcome of main petition."
17.07.2007 : This Court (Hon'ble Ms. Justice R.M. Doshit) rejected the CA 9129 of 2007 for modification of the order as it has become infructuous in pursuance of the order passed in CA 8968 of 2007 dated 16.7.2007.
20.11.2007 : The respondent workman has filed CA 14780 of 2007 for appropriate directions under Section 17B of the ID Act, 1947 as the order dated 16.7.2007 passed by this Court in CA 8968 of 2007,whereby, the Hon'ble Court has directed to reinstate the respondent workman, has been challenged by the employer by filing LPA No. 1537 of 2007 on 31.07.2007, wherein, the Hon'ble Division Bench (Coram : A.L. Dave and S.D. Dave, JJ.) vide order dated 7.8.2007 granted ad-interim relief in terms of Para 4(B) in Civil Application No. 10421 of 2007 (for Stay), wherein, employer has prayed for stay of order passed by this Court (H.K. Rathod, J.) dated 16.7.2007.
14. Therefore, according to my opinion, original petitioner is failed to prove before this Court by cogent evidence that workman is employed in any establishment and receiving adequate remuneration from such establishment. Therefore, workman is entitled the benefit of Section 17B of the ID Act, 1947 on the ground that the affidavit is filed by workman for his unemployed and not gainful employed in any establishment and receiving adequate remuneration from any establishment.
15. Therefore, it is directed to original petitioner to pay last drawn wages to respondent workman-present applicant w.e.f. 5th February 2007 till 30th April 2008 within a period of one month from the date of receiving the copy of the said order and it is further directed to original petitioner to pay regularly last drawn wages to the workman till the matter is finally decided by this Court.
16. Accordingly, present civil application is disposed of.