Gujarat High Court
Manager, Texspin Bearing Limited vs Dolubha Sherbha Parmar on 15 March, 2021
Author: A.G.Uraizee
Bench: A.G.Uraizee
C/SCA/14738/2019 IA ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2021 In R/SPECIAL CIVIL APPLICATION NO. 14738 of 2019 ============= ==== == == == == = == == == == == == == == == == == == === == DOLUBHA SHERBHA PARMAR Versus MANAGER, TEXSPIN BEARING LIMITED ============= ==== == == == == = == == == == == == == == == == == == === == Appearance:
MR UT MISHRA for the PETITIONER(s) No. MR GAUTAM JOSHI SENIOR ADVOCATE WITH MR IG JOSHI for the RESPONDENT(s) No. ============= ==== == == == == = == == == == == == == == == == == == === == CORAM: HONOURABLE MR. JUSTICE A.G.URAIZEE Date : 15/03 / 2 0 2 1 IA ORDER
1. The applicant, who is original respondent in Special Civil Application No.14738 of 2019, preferred by the opponent herein, has preferred present application under Section 17-B of the Industrial Disputes Act, 1947 (hereinafter referred to as the "I.D. Act" for short) for payment of wages during the pendency of the proceedings of the petition.
2. I have heard Mr. U.T. Mishra, learned advocate for the applicant and Mr. Gautam Joshi, learned Senior Advocate assisted by Mr. I.G. Joshi, learned advocate for the respondent No.1.
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3. Rule returnable forthwith. Mr. I.G. Joshi, learned advocate waives service of rule on behalf of the respondent No.1.
4. Mr. Mishra, learned advocate for the applicant submits that the respondent No.1 has assailed the judgment and award of the Labour Court before this Court in the Special Civil Application No.14738 of 2019 whereunder the respondent is directed to reinstate the applicant with 25% backwages. He, further submits that by order dated 3.9.2019, the petition is admitted and ad-interim relief is granted whereby the implementation of the impugned award is stayed reserving the liberty in favour of the applicant-
workman to file affidavit under Section 17-B of the I.D. Act regarding he, being not gainfully employed. The applicant submits that the applicant has filed affidavit in the main petition wherein it is stated that he is not gainfully employed and has no source of income. He, therefore, urges that the respondent No.1 may be directed to pay wages as required under Section 17-B of the I.D. Act till disposal of Page 2 of 6 Downloaded on : Thu Mar 18 20:33:03 IST 2021 C/SCA/14738/2019 IA ORDER the petition.
5. Mr. Gautam Joshi, learned Senior Advocate has resisted this application. He, submits that the respondent No.1 has filed affidavit-in-reply to present application whereunder it is clearly stated that the applicant is gainfully employed and is running a Pan Parlor near ADC Bank at A.D. Hospital Road. He, further submits that the applicant earns a decent money from his business of Pan Parlor and therefore, present application may be dismissed.
6. I have given my thoughtful consideration to the submissions canvassed at bar. At this stage, it is appropriate to take into account Section 17-B of the I.D. Act which reads as under:-
"17-B. 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 Page 3 of 6 Downloaded on : Thu Mar 18 20:33:03 IST 2021 C/SCA/14738/2019 IA ORDER 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.]"
6.1 It is thus, eminently clear from bare reading of Section 17-B of the I.D. Act that where the Labour Court, Tribunal or Industrial Tribunal directs reinstatement of any workman and the employer prefers any proceedings against such direction either before the High Court or Supreme Court, the employer is under an obligation to pay to such workman 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 is filed to such Page 4 of 6 Downloaded on : Thu Mar 18 20:33:03 IST 2021 C/SCA/14738/2019 IA ORDER effect in the Court.
6.2 The applicant has, empathetically stated on oath in affidavit produced in the main petition that he is ready and willing to resume his duty subject to final out come of the petition and that he is not gainfully employed in any industrial establishment and has no source of income. 6.3 The respondent has made faint attempt in affidavit-in- reply to counter the assertion of the applicant that he is not gainfully employed. The respondent has made bald statement in the affidavit-in-reply that the applicant is in the family business of agricultural activities wherefrom he is deriving handsome income without backing up such assertion by visible evidence.
7. In view of above facts, I do not find any germane reason not to accept the statement on oath of the applicant that he is not gainfully employed and has no source of income.
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8. As a result, the natural consequence would be to accept this application by directing the respondent No.1 to pay to the applicant wages in terms of Section 17-B of the I.D. Act.
9. For the foregoing reasons, present civil application succeeds and hereby allowed. The respondent No.1 is hereby directed to pay to the applicant full wages last drawn by him in terms of Section 17-B of the I.D. Act during pendency and final disposal of Special Civil Application No.14738 of 2019. The opponent is directed to make the payment in compliance of this order as expeditiously as possible but not later than one month from today.
The Civil Application is allowed. Accordingly, the Civil Application stands disposed of. Rule is made absolute.
(A.G.URAIZEE, J) SURESH SOLANKI Page 6 of 6 Downloaded on : Thu Mar 18 20:33:03 IST 2021