Gujarat High Court
Shailendra Kalidas Solanki vs Gujarat Agro Industries Ltd on 27 January, 2016
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
With
SPECIAL CIVIL APPLICATION NO. 625 of 2009
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SHAILENDRA KALIDAS SOLANKI....Applicant(s)
Versus
GUJARAT AGRO INDUSTRIES LTD....Respondent(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 : 27/01/2016
ORAL ORDER
1. When the application is called out and taken up for hearing, learned advocates for the applicant and opponent are not present.
2. It is informed that learned advocate for the applicant has filed leave note.
3. This application was listed, for the first time, for hearing on 16.06.2015. Thereafter, the application was adjourned from time to time. On 08.12.2015, this Court passed an order after hearing learned advocate for the applicant. By the said order dated 08.12.2015, certain Page 1 of 10 HC-NIC Page 1 of 10 Created On Sat Apr 09 02:16:50 IST 2016 C/CA/3642/2015 ORDER directions came to be passed. The relevant part of the said order reads thus:-
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" 6. 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.
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 Page 2 of 10 HC-NIC Page 2 of 10 Created On Sat Apr 09 02:16:50 IST 2016 C/CA/3642/2015 ORDER paid to the applicant - original respondent from the date of present order.
22. If the opponent - original petitioner desires any modification or vacation of the order, it will be open to the opponent to file appropriate application."
4. Subsequently, the opponent preferred Misc.Civil Application No.3 of 2016 and requested the Court that for the reasons mentioned in the application, the order dated 08.12.2015 may be recalled.
5. After hearing learned advocates for the applicant and opponent, the Court passed order dated 07.01.2016 and for the reasons recorded in the said order, earlier order dated 08.12.2015 was recalled. Thereafter, this application came to be restored.
6. This application was listed for hearing and appropriate order on 13.01.2016. On the said date, the Court passed following order:-
"Learned advocate for the applicant needs time to file affidavit in rejoinder. S.O. to 27.01.2016"Page 3 of 10
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7. Pursuant to the said order, the application is listed for hearing today. However, as mentioned above, learned advocate for the applicant is not present. It is informed that he has filed leave note.
8. However, having regard to the order dated 13.01.2016, whereby the application was adjourned at the request of learned advocate for the applicant and time to file rejoinder was granted and having regard to the fact that the rejoinder is not filed, this Court considers it appropriate, particularily in view of the nature of the relief prayed for in the application, to decide the application instead of adjourning it further.
9. In this application, the applicant has prayed that the opponent i.e. original petitioner may be directed to pay last drawn wages in accordance with Section 17B of the Industrial Dispute Act, 1947.
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10. It is relevant to mention that against the award dated 28.07.2008, whereby the learned Labour Court directed the original petitioner (i.e. present opponent) to reinstate present applicant, the employer i.e. present opponent filed Special Civil Application No. 625 of 2009.
11. By order dated 27.01.2009, the Court admitted the petition and granted interim relief staying the implementation of the said award dated 28.07.2008 in Reference (LCA) NO. 1033/2000. The interim relief was granted on the condition that during the pendency of the petition, the employer will pay last drawn wages to the workman.
12. In view of the provision under Section 17B of the Act, the concerned workman, so as to avail benefit of payment of last drawn wages, was obliged to file an affidavit declaring that he is not gainfully employed and is not earning any income.
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13. It prima-facie appears that if the applicant was genuinely not gainfully employed, then such affidavit ought to have been and would have been filed immediately after 27.01.2009, or within reasonable time after the order dated 27.01.2009.
14. However, from the record, it has emerged that until the applicant filed present application on or around 30th March, 2015, the applicant had not filed any affidavit declaring that he is not gainfully employed and not earning any income. Such affidavit in the application for the said purpose came to be filed for the first time by the workman on or around 13.03.2015.
15. In the order dated 12.05.2011 in Letters Patent Appeal No.531 of 2008 Hon'ble Division Bench has observed and held that the workman who is entitled for payment of last drawn wages in accordance with Section 17B of the Act, pursuant to pendecy of any proceedings in the Page 6 of 10 HC-NIC Page 6 of 10 Created On Sat Apr 09 02:16:50 IST 2016 C/CA/3642/2015 ORDER High Court and pursuant to any interim order passed by the Court in such proceedings, would be entitled for payment of last drawn wages on and from the date of which the workman files an affidavit declaring that he is not gainfully employed.
16. In view of the said decision by Hon'ble Division Bench, in present case, the applicant i.e. original respondent in main petition would be entitled for payment of last drawn wages with effect from 30.03.2015.
17. Having regard to the said aspect, the Court had passed order dated 08.12.2015. However, subsequently it was brought to the Notice of the Court that the applicant had attained age for superannuation before 30.03.2015. Thus, for the reason recorded in the order dated 07.01.2016, the said order came to be recalled in view of the reasons recorded in the order dated 07.01.2016 passed in Misc. Civil Application No. 3 of 2016. Page 7 of 10 HC-NIC Page 7 of 10 Created On Sat Apr 09 02:16:50 IST 2016 C/CA/3642/2015 ORDER
18. At this stage, it is necessary to mention that in Paragraph No.4 of the affidavit which the employer filed in present application, it is declared that the petitioner has attained and crossed the age for superannuation in May, 2013, i.e. almost 2 years before the date on which the applicant filed affidavit declaring that he is not gainfully employed.
19. As mentioned above, the workman would be entitled for payment of wages from the date when he files an application along with proper declaration that he is not gainfully engaged.
20. Therefore, in present case, the workman would be entitled for such payment with effect from 30.03.2015 (inasmuch as at earlier point of time he had not filed such affidavit / application). However, from the employer's affidavit, it has emerged that the applicant attained age for superannuation in May, 2013 i.e. long before he Page 8 of 10 HC-NIC Page 8 of 10 Created On Sat Apr 09 02:16:50 IST 2016 C/CA/3642/2015 ORDER filed the affidavit.
21. Therefore, the relief prayed for by the applicant in present application cannot be granted. For above mentioned reasons, the application deserves to be rejected.
22. On previous occasion (on 13.01.2016), learned advocate for the applicant had prayed for time to file rejoinder affidavit to counter the details mentioned by the employer in its affidavit dated 20.07.2015. Though time was granted, until now, such affidavit is not filed and the details in the affidavit dated 20.07.2015 have not been controverted, and therefore, for above discussed reasons, this application is rejected.
23. However, it is clarified that if the applicant has any evidence with aid of which the applicant can controvert the details mentioned in Paragraph No.4 of the affidavit dated 20.07.2015, then it would be open to the applicant to file Page 9 of 10 HC-NIC Page 9 of 10 Created On Sat Apr 09 02:16:50 IST 2016 C/CA/3642/2015 ORDER appropriate application along with said evidence.
24. In that event, the application will be considered on its merits and present order will not stand in way of the applicant to prosecute such fresh application.
25. Beside this, having regard to the fact that Court is of the view that in light of the facts of the case so far as payment of last drawn wages in accordance with Section 17B of the Act is concerned, it would be appropriate to hear and decide the main petition on its merits at an early date because the petition is pending since 2009.
26. Therefore, office is directed to list the petition in the cause list for final hearing on 04.02.2016.
With the aforesaid clarification, present application is rejected.
(K.M.THAKER, J.) Girish Page 10 of 10 HC-NIC Page 10 of 10 Created On Sat Apr 09 02:16:50 IST 2016