Gujarat High Court
Automotive Stamping And Assambly Ltd vs Akhil Gujarat General Mazdoor Sangh on 25 April, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/10682/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10682 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 13511 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 13512 of 2015
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AUTOMOTIVE STAMPING AND ASSAMBLY LTD
Versus
AKHIL GUJARAT GENERAL MAZDOOR SANGH
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Appearance:
MR KM PATEL, SR. COUNSEL, WITH MR VK PATEL(3802) for the
PETITIONER(s) No. 1
MR AK CLERK(235) for the RESPONDENT(s) No. 1
NOTICE NOT RECD BACK(3) for the RESPONDENT(s) No. 2,3
NOTICE SERVED(4) for the RESPONDENT(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 25/04/2018
ORAL ORDER
Heard Mr. Patel, learned Senior Counsel, with Mr. V.K.Patel, learned advocate for the petitioner company in Special Civil Application No.10682 of 2015, Mr. Joshi, learned advocate for the petitioners in Special Civil Application Nos.13511 of 2015 and 13512 of 2015 and Mr. Clerk, learned advocate for the workmen concerned in Special Civil Application Nos.10682 of 2015, 13511 of 2015 and 13512 of 2015.
2. The petitioners in Special Civil Application Nos. 10682 of 2015, 13511 of 2015 and 13512 of 2015 are aggrieved by award dated 13.3.2015 Page 1 Downloaded on : Sat Jul 27 01:52:55 IST 2019 C/SCA/10682/2015 ORDER passed by learned Industrial Tribunal at Vadodara in Reference (IT) No.13 of 2008 whereby learned Tribunal directed first party No.1, first party No.2 and first party No.3 in Reference (IT) No.13 of 2008 before the learned Tribunal i.e. petitioners in captioned 3 petitions to reinstate the concerned claimants/workmen on their original post with same terms and conditions on which they were working prior to termination. The learned Tribunal clarified that if the first party No.1 and/or first party No.2 fail to comply the directions, then, first party No.3 shall be obliged to comply the award. The learned Tribunal further clarified that the direction shall be subject to final decision in Reference (IT) No.127 of 2007, as and when the same is finally decided. Feeling aggrieved by the said award and direction, the petitions have taken out present petitions.
3. Mr. Patel, learned Senior Counsel for the petitioner in Special Civil Application No.10682 of 2015 submitted summary of points of contentions against the impugned award, which are treated as submissions by petitioners against the award. The contentions raised by the petitioners are in below mentioned terms:-
"1. The award directing petitioner to reinstate workmen of contractor in service and pay 20% back wages in case the same is not carried out by Contractor (respondent nos.2 and
3) is not sustainable since the petitioner is not the Page 2 Downloaded on : Sat Jul 27 01:52:55 IST 2019 C/SCA/10682/2015 ORDER employer of the workmen represented by respondent no.1 Union. Indeed the Tribunal has proceeded on the footing that petitioner is principal employer (page 56) and has further held that until Reference (11) No.127 of 2007 concerning demand for regularisation is decided, it cannot be decided at this stage who is the employer.(page 58). Without deciding the core question as to whether the petitioner is employer or not, no relief against the petitioner could have been given by the Tribunal.
2. The award is based on alleged violation of section 33, 25F and 9A of the Industrial Disputes Act, 1947. The petitioner being not the employer, violation of any provisions of the said Act cannot be attributed to the petitioner. Moreover there is no breach of section 33 during the pendency of Reference since the alleged termination of service is on 11-6-2007 whereas the Reference was made on 13-2-2008. The case of Union that section 33 is violated during the pendency of conciliation proceedings does not afford sustainable ground to hold alleged termination order illegal in View of different consequences provided in section 33A of the Act. Similarly finding regarding violation of section 25F is unsustainable as the same is not supported by any cogent evidence except self serving affidavits of the workmen. Annexure showing names of workmen and their date of joining annexed to the order of Reference (Annexure-B page 78 to 100 to the petition) ex-facie shows that number of workmen had put in less than 8 months service and could not have completed one year continuous service.
The breach of section 25F is not established. As far as violation of section 9A is concerned, no entry of schedule IV is attracted and the View taken by the Tribunal of breach of section 9A is unsustainable.
3. The Reference and award is based on misconceived and untenable grounds that services of the workmen were orally terminated on 11-6-2007. The stand taken before the Conciliation Officer by the Contractors showing willingness to give work at other places, in the written statement of the Contractor, (page 122) pursis Exhibit-9 and 12 (Annexure-F and G respectively) filed by the Contractor before the Tribunal showing readiness to provide work at other places and Registered AD envelopes produced with List Exhibit-34 (page 226) returned unserved as refused go to show that the services of workmen were not terminated but on account of reduction in work in the petitioner's factory, the workmen were asked to work at other places and they were not willing to go elsewhere. The version of oral termination of service on 11-6-2007 is got up and to avoid reporting for work at other places. The cross examination of Bachubhai Khant (Exhibit-26 page 195) Witness of the Union supports the above version as he has admitted that during conciliation proceedings the Contractors had offered work at other places and that only about 20 workmen reported at other places pursuant to order made by Tribunal below pursis Exhibit-9.
4. The Tribunal has granted relief against the petitioner Page 3 Downloaded on : Sat Jul 27 01:52:55 IST 2019 C/SCA/10682/2015 ORDER at the premature stage since until Reference (IT) No.127/2007 is decided in favour of workmen no relief against the petitioner can be granted. The impugned award creates irreversible situation since if the Reference No. 127 of 2007 is dismissed, the petitioner will be required to undergo uncalled for and unwarranted obligation to reinstate the workmen.
5. Finding that contracts are for namesake is beyond terms of Reference.
6. Since the award is not sustainable and the Contractor Riya Enterprise has shown willingness to provide work at other places where it has contracts, unconditional stay of award qua the petitioner deserves to be granted. The present position of the petitioner is precarious. It has accumulated losses of Rs. 48.10 crores and the Factory works in only one shift instead of 3 shifts and that too for about 15 days in a month. The work has drastically reduced on account of the fact that sole source of work for the factory of the petitioner was from General Motors India Pvt Ltd which has since been closed and there are no orders. It is therefore a tit case for granting unconditional interim stay of award qua petitioner without imposing obligation under section
178. In the nature of employment services of the workmen are transferrable wherever the Contractors have contracts and can provide work and the workmen cannot insist for work only at the factory of the petitioner when no work is available. Transferability is inherent in the nature of their employment.
(i) BHEL vs Kamalkar Mater and others (2002) 9 SCC 661
(ii) ONGC Ltd vs Gujarat Mazdoor Sabha 2009 (1) GLR 361
(iii) Gujarat Mazdoor Sabha vs Indian Oil Corporation 2005 (3) GLH 85
(iv) Batra Hospital Employees Union vs Management 2012 1 LIJ 69 (V) Balwantrai Saluja vs Air India Ltd (2014) 9 SCC 407
(vi) Pearlite Liners Pvt Ltd vs Manorama Sirsi 2004 (100) FLR 997
(vii) Oshiar Prasad & Ors. v. Employees in relation to Management of Sadamdin Coas Washery of M/s. BCCL, Dhanbad (2015) 4 SCC 1)."
4. Mr. Clerk, learned advocate for the workmen also submitted his contentions i.e. brief points, which are mentioned below :-
"1. The services of 182 workmen were terminated on 11- 06-2007 during the pendency of the conciliation proceedings immediately after the Conciliation Officer admitted the demands in conciliation on 21-0507. There is a clear breach of section 33 of the ID Act.
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2. There is nothing on record to show that the work of the company had reduced.
3. There is nothing on record to show that the workers were transferred by the alleged contractors on 11-06-07 or at any time prior thereto. The Industrial Tribunal has found that the offer to transfer the workmen to other places was an afterthought.
4. Documentary evidence on record shows that some of the workmen were directly employed by the company and later on they were shown as contractors' workmen.
5. No procedure whatsoever was followed before terminating the services of 182 workmen.
6. The award dated 13-03-15 is not stayed by this Hon'ble Court at any time.
7. This Hon'ble Court had allowed SCA Nos. 10682, 13511 and 13512 of 2015 by judgment and order dated 06-11-15. Being aggrieved by this judgment and order, the workmen preferred LPA No. 748, 808 and 910 of 2016 which were partly allowed by the Division Bench of this Hon'ble Court by judgment and order dated l4-09-l7.
8. The workmen are without any relief even though the award dated 13~ 0345 is not stayed at any time.
9. Transfer is not an implied condition of service for industrial workmen AlR-60-SC-650 l992-l~GLH-703 l977(l8)GLR~788 2003-LLR-l42
10. At present also the company's unit is working in 3 shifts and is employing more than 200 workmen.
ll. The Tribunal found that if the position prevailing prior to the termination on ll~06~2007 is not maintained during the pendency of Ref. (IT) No. 127 of 2007 for being treated as permanent workmen of the company, the said reference would become infructuous.
12.The Tribunal also found that the company has not led any evidence to show as to from which workmen the company is taking work after termination of these employees.
13. The Tribunal found that the concerned workmen were engaged in manufacturing activity of the company.
14. The company and the alleged contractors did not lead any oral evidence before the Tribunal.
15. The award of the Tribunal is subject to the final Page 5 Downloaded on : Sat Jul 27 01:52:55 IST 2019 C/SCA/10682/2015 ORDER order that may be passed in Ref. (IT) No. 127 of 2007.
16. Reliance is placed on Bhavnagar Municipality Vs. Alibhai Karimbhai l977-1-LLJ-407(SC) Jaipur Zila Sahkari Bhoomi Vikas bank Ltd. Vs. Ram Gopal Sharma 2002-2-SCC-244
17. The petitioner is not entitled to any relief as prayed for."
5. From the details mentioned in the petitions and from the affidavit filed by the respondents (concerned employees), it has emerged that the concerned employees raised industrial dispute with the allegation that their services came to be illegally terminated. Appropriate government referred the dispute for adjudication to learned Tribunal. Before the learned Tribunal, the workmen filed statement of claim, essentially, with the allegation viz. that the first party employer illegally terminated their services and before terminating their services, the first party employer did not follow procedure prescribed by law and also violated principles of natural justice and also committed breach of Section 33 and Section 9A of the ID Act. The claimants on the said ground, demanded reinstatement in service with consequential benefits.
6. The first party employer opposed the allegations and claim by the workmen. In the reply which the first party employer filed before Page 6 Downloaded on : Sat Jul 27 01:52:55 IST 2019 C/SCA/10682/2015 ORDER the learned Tribunal, the first party employer claimed that the service of the claimants have not been terminated, but the claimants have been transferred to other establishment and that therefore, question of following procedure under the ID Act, more particularly under Section 9A or Section 25F, Section 25G and Section 25H and similar/ corresponding provisions under Chapter V(B) as well as Section 33 of the ID Act, did not arise.
7. Per contra, the learned counsel for the workmen claimed that the defence on the premise that the service of the workmen were transferred to other establishment was raised for the first time in the written statement and at any time before submission of written statement, neither first party No.3 nor even first party No.1 and/or first party No.2 had ever transferred the service of the claimants to other establishment any order transferring their service to other establishment were not issued, they were not informed details of the establishment (its name, its location, etc.) whether they were - allegedly - transferred and/or given any order or instruction transferring the service of the claimants to other establishment and such contention was raised only as an afterthought for the first time before the Court in the written statement.
Page 7 Downloaded on : Sat Jul 27 01:52:55 IST 2019 C/SCA/10682/2015 ORDER 7.1 The workmen also seems to have contended that in any case, any order intimating the details of the establishment/ place where they allegedly transferred was never issued by the employer before the workman raised the dispute and even before employer filed written statement and that therefore, the contention that transfer took place at the time when the proceedings were pending before the conciliation officer is without merits and even the contention that the action does not fall within purview of Section 33 and Section 33A of the ID Act would not be attracted also is without merits.
7.2 Mr. Clerk, learned counsel for the workmen, inter alia, relied on the observations in paragraph No.2 of the decision in case of Automotive Manufacturers Ltd., Rajkot v. Nanlal Panachand Vakharia & Anr. [1977 (18) GLR 788], which read thus:-
"2. Now admittedly transferability out of the city was not an express condition of service. Can it then be imposed on an employee by ascribing it to him under the doctrine of an implied term of service 7 it can be read into the contract as an implied term if there is some compulsion to read it into a contract of service by necessary implication having regard to the very nature of the employment. Not otherwise. One must be able to say : what is obvious need not be explicitly stated and may be taken' to have been understood by both the sides. To hold that it was an implied condition would be to attribute to the employee a deliberate desire to subject himself to transferability. He was occupying a house on Rs. 20/- per month in Rajkot presumably because of the Rent Act. In Ahmedabad he would not be able to secure a house for possibly less than Rs. 200/-. Rent-cost as percentage of his income might rise from 10% to 50%. Education of children would suffer for want of admissions at transferred place. Some members of his family Page 8 Downloaded on : Sat Jul 27 01:52:55 IST 2019 C/SCA/10682/2015 ORDER might be employed in his hometown and they would have to remain back and maintain a separate household. His whole family would be disrupted. One cannot ascribe to the respondent. a lowly paid employee, such a desire to subject himself to transfer to a branch outside the city in which he secured employment as it would have disastrous consequences on his economic and family life. The Labour Court by a we" considered judgment has decided the pivotal issue against the petitioner. Other points indicated in the petition were not even argued in the Labour Court. The petitioner cannot be permitted to raise these points (which even otherwise are devoid of substance) is this petition under Article 227 of the Constitution of India. No error apparent on the face of the record is shown. The petition is, therefore, summarily dismissed." (emphasis supplied) Mr. Clerk, learned counsel also relied on the observations in paragraph Nos.3 to 5 and 7 in the decision in case of M/s. Kundan Sugar Mills v. Ziyauddin & Ors. [AIR 1960 SC 650], which read thus:-
"3. To appreciate the first contention, it is necessary to notice the undisputed facts in this case. It is true that the partners of the Sugar Mills at Amroha own also the Sugar Mills at Bulandshahr; but they were proprietors of the former Mills in 1946 whereas they purchased the latter mills only in the year 1951 and 921 started the same in Bulandshahr in or about 1955. The respondents 1 to 4 were employed by the owners of the appellant-Mills at the Sugar Mills at Amroha at a time when they were not proprietors of the Sugar Mills at Bulandshahr. It is conceded that it was not an express term of the contract of service between the appellant and the respondents I to 4 that the latter should serve in any future concerns which the appellant might acquire or start. It is also in evidence that though the same persons owned both the Mills they were two different concerns. In the words of the Appellate Tribunal, the only connection between the two is in th identity of ownership and, but for it, one has nothing to do with the other. It is also in evidence that an imported workman at Amroha is entitled to house- rent, fuel, light and travelling expenses both ways, while at Bulandshahr the workmen are not entitled to any of these amenities. The workmen at Amroha are entitled to benefits under the Kaul Award while those at Bulandshahr are not so entitled. The General Manager, E.W.1, in his evidence stated that the interim bonus of the Bulandshahr factory as ordered by the Government in November 1955 was Rs. 1 1,000 while for Amroha it: was nearly 1-1/2 lacs ". He also stated that "the bonus for last year at Amroha would be probably equal to II months' wages and at Bulandshahr equal to about 4 or 5 days' wages." It is also in evidence that apart from the disparity in the payment of bonus, the accounts are separately made up for the two mills. It is clear that the two mills are situated at different places with accounts separately maintained and governed by different service conditions, though they happened to be under the common management; therefore, they are treated as two different entities.
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4. The question of law raised in this case must be considered in relation to the said-facts. The argument of the learned counsel for the appellant that the right to transfer is implicit in every contract of service is too wide the mark. Apart from any statutory provision, the rights of an employer and an employee are governed by the terms of contracts between them or by the terms necessarily implied therefrom. It is 922 conceded that there is no express agreement between the appellant and the respondents where under the appellant has the right to transfer the respondents to any of its concerns in any place and the respondents the duty to join the concerns to which they may be transferred. If so, can it be said that such a term has to be necessarily implied between the parties ? When the respondents 1 to 4 were employed by the appellant, the latter was running only one factory at Amroha. There is nothing on record to indicate that at that time it was intended to purchase factories at other places or to extend its activities in the same line at different places. It is also not suggested that even if the appellant had had such an intention, the respondents I to 4 had knowledge of the same. Under such circumstances, without more, it would not be right to imply any such term between the contracting parties when the idea of starting new factories at different places was not in contemplation. Ordinarily the employees would have agreed only to serve in the factory then in existence and the employer would have employed them only in respect of that factory. The matter does not stop there. In the instant case, as we have indicated, the two factories are distinct entities, situated at different places and, to import a term conferring a right on the employer to transfer respondents I to 4 to a different concern is really to make a new contract between them.
5. The decisions cited at the Bar do not in the least sustain the appellant's broad contention. In Alexandre Bouzourou v. The Ottoman Bank (1) the appellant was an employee of the respondent-bank. The bank transferred him from one branch to another branch of the bank situated in different towns. As he refused to comply with the order of transfer, he was dismissed. Thereafter, he filed a suit to recover damages from the bank for wrongful dismissal. It was argued before the Judicial Committee that under the terms of his contract of service the sphere of his employment included only the head office and not the branches of the bank. The evidence in that case showed that transfer was one of the ordinary incidents of the bank's employment, being usually concurrent with an increase of salary and responsibility, and suggest no more than that the bank considered their officials convenience where possible. Indeed the appellant therein did not even suggest in his correspondence thatthe transfer was a breach of his contract. On these circumstances the Judicial Committee observed as follows at p. 119:
" From the point of view of proper organization of their staff it is difficult to assume that the Bank would willingly agree that their employees should not be bound to serve outside the place where the contract was made except with their consent, and, in their Lordships' opinion such a condition of the contract would require to be clearly established."
The essential distinction between that case and the present one is that there the bank with its branches was one unit and the records clearly indicated that transfer was one of the ordinary Page 10 Downloaded on : Sat Jul 27 01:52:55 IST 2019 C/SCA/10682/2015 ORDER incidents of service in the Bank. In such circumstances when a person joined such a service, the Privy Council found it easy to imply a term of transfer. That decision is therefore not of any relevancy to the present case. In Mary (Anamalai Plantation 'Workers' Union) v. Seliparai estate (2), labour was recruited in the plantations without any differentiation being made between factory and field workers and it had been the common practice prevailing for several years to transfer the factory workers to the field and vice-versa, according to the exigencies of work. A worker who had been appointed in such a plantation was transferred, owing to mechanisation in the factory, from the factory to the field. The Labour Appellate Tribunal of India held that in the circumstances of the case the liability to be so transferred must be deemed to be an implied condition of service. So too in Bata Shoe Company, Ltd. v. Ali Hasan (Industrial Tribunal, Patna & Ors.) (3) transfer of an employee in the circumstances of that, case from one post to another was held not to be an alteration of any service condition within the meaning of s. 33 of the Industrial Disputes Act. That was a case of a management employing a worker in one concern and transferring him from one post to another. In such a case it was possible to imply the condition of right of the management to transfer the employee from one post to another. S. N. Mukherjee v. Kemp & Co. Ltd. (4) was a case arising out of s. 23 of the Industrial Disputes (Appellate Tribunal) Act, 1950. The complaint there was that an employee was transferred by the management with a view to victimize him and that it amounted to alteration in the conditions of employment. It was held that if an employer employed a person it was implicit in the appointment that he could be transferred to any place where the business of the employer in the same line was situated, unless there was an express condition to the contrary in the contract of employment. In that case the worker was employed by Kemp & Co., Limited, which had branches in different places. The decision assumed that the business was one unit and that the only question raised was that he should not be transferred to a place different from the place where he was actually discharging his duties. These observations must be limited to the facts of that case.
7. We have referred to the decisions only to distinguish them from the present case, and not to express our opinion as to the correctness of the decisions therein. It would be enough to point out that in all the said decisions the workers had been employed in a business or a concern and the question that arose was whether in the circumstances of each case the transfer from one branch to another was valid or amounted to victimization. None of these decisions deals with a case similar to that presented in this appeal, namely, whether a person employed in a factory can be transferred to some other independent concern started by the same employer at a stage subsequent to the date of his employment. None of these cases holds, as it is suggested by the learned counsel for the appellant, that every employer has the inherent right to transfer his employee to another,place -where he chooses to start (4) [1954] L.A.C. 903 925 a business subsequent to the date of the employment. We, therefore, hold that it was not a condition of service of employment of the respondents either express or implied that the employer has the right to transfer them to a new concern stared by him subsequent to the date of their employment." (emphasis supplied) Page 11 Downloaded on : Sat Jul 27 01:52:55 IST 2019 C/SCA/10682/2015 ORDER 7.3 It is also claimed that there was no evidence on record before the learned Labour Court that before the date on which the claimants raised the dispute, any order transferring the service of the claimants was issued by the opponents. Any contemporaneous material to establish that such orders were passed and served, was not placed before the learned Labour Court. Further, in absence of appointment order prescribing that the service of the claimants will be transferable from one place to other or from one establishment to other, even otherwise, such power or authority could not have been exercised. Besides this, in absence of such condition, even if orders transferring service of the employee are passed, then, it would amount to change in service condition which, in turn, would amount to breach of Section 33, if that is done without approval or permission by the Court, in accordance with Section 33 of the Act.
8. The workmen seems to have also claimed that their service is not and was never transferable. There is no condition, in their appointment, that there service would be transferable to other establishment and/or at any other place, more particularly outside the city or outside the State and/or even outside the establishment. It Page 12 Downloaded on : Sat Jul 27 01:52:55 IST 2019 C/SCA/10682/2015 ORDER seems to have been contended before the learned Tribunal that in absence of specific condition about transferability, such condition cannot be inferred in case of workmen covered under the provisions of ID Act, more particularly workmen employed in lowly paid category.
9. Rival contentions raised by the first party employer i.e. present petitioner and the workmen have brought out that the award passed by learned Tribunal calls for further examination by this Court and consequently, the petition filed by first party employer No.3 before learned Tribunal deserves consideration.
10. So far as first party Nos.1 and 2 are concerned, in light of the stand taken by said two petitioners before the learned Tribunal, there appears little scope for the said two petitioners to raise grievance against impugned award. However, it is claimed that the direction to maintain service conditions which existed before the date of dispute and to reinstate the claimants at the same place where they worked before the date of dispute on the same terms and conditions which existed before the date of dispute, hurts and affects the said petitioners as well. Since the petition by party No.3 is admitted, two petitions filed by the said first Page 13 Downloaded on : Sat Jul 27 01:52:55 IST 2019 C/SCA/10682/2015 ORDER party No.1 and first party No.2 before the learned Tribunal earn admission alongwith the petition filed by original first party No.3 before the learned Tribunal.
11. In view of rival contentions as well as facts and circumstances of the case and the observations and findings recorded by learned Tribunal and the directions issued by learned Tribunal,following order is passed in respect of all the three captioned petitions.
[a] RULE.
[b] By way of interim relief, the implementation and operation of the impugned award is stayed on the condition that the petitioners shall, during pendency of the petitions, comply the condition and requirement prescribed under Section 17-B of the ID Act and the claimants (concerned workmen) would be entitled for payment of last drawn wages in accordance with said provision.
12. The petitioner in Special Civil Application No.13512 of 2015 - i.e. M/s. Riya Enterprises would submit at this stage that the said petitioners are ready to offer work to the claimants at other establishment/other location.
Page 14 Downloaded on : Sat Jul 27 01:52:55 IST 2019 C/SCA/10682/2015 ORDER 12.1 The said submission and offer is diagonally and diametrically opposite and contrary to the direction passed by the learned Tribunal in impugned award. Besides this, any specific offer with exact details is not placed on record.
12.2 With regard to said offer, learned counsel for the concerned workmen would submit that if any order to said effect is granted, then, in light of peculiar facts of present case, it would amount to allowing Special Civil Application Nos.13511 of 2015 and 13512 of 2015 and it would also amount to setting aside, at interim stage, final direction passed by learned Tribunal whereby the petitioners are directed to reinstate the claimants at the same place and with same service conditions which existed before the date of dispute.
12.3 At this stage, it is relevant to note that before this Court, the offer to provide work at other establishment is made by one one of the original opponents i.e. by M/s. Riya Enterprises. So far as the original opponent No.1 i.e. M/s. Krupalu Enterprises is concerned, it is declared by learned advocate (who entered appearance for said M/s. Krupalu Enterprises as well as by learned Senior Counsel for M/s. Automotive Stamping & Assambly Ltd. as well as M/s. Riya Page 15 Downloaded on : Sat Jul 27 01:52:55 IST 2019 C/SCA/10682/2015 ORDER Enterprises) that similar offer is not made by M/s. Krupalu Enterprises. Similar offer isalso not made by M/s. Automotive Stamping & Assambly Ltd. Said M/s. Automotive Stamping & Assambly Ltd. tried to wriggle out from offering work to the claimants on the ground that it does not have sufficient work. However, the said fact is vehemently opposed by learned counsel for the concerned workmen on the premise that no evidence to that effect was ever placed before the learned Labour Court and any cogent evidence to support such claim is not available on record of the petitions and that actually, the said company is, according to information with the concerned claimants, running its activities in three shifts and it avoids employing the workmen on regular and permanent basis and prefers to run its activities by engaging contractors. Be that as it may, at this stage, when such offer is made by only one of the three opponents before the learned Labour Court, then, it would not, prima facie, envelope all the claimants. Further, it may also amount to recognizing existence of condition or authority with original opponents (namely authority to transfer employees from one place to another or from one establishment to other) and it may also amount to recognizing existence of such condition which, as such, is not established in view of absence of appointment Page 16 Downloaded on : Sat Jul 27 01:52:55 IST 2019 C/SCA/10682/2015 ORDER orders.
13. Besides above mentioned aspects, it is also appropriate and necessary to consider that the submissions by learned counsel for both sides are, at this stage, premature and not required to be considered at this stage because the issue or apprehension which are voiced by both sides at this stage would actually arise at the time when the claimants file affidavit declaring that he is / they are not gainfully employed.
At that stage and in response to such affidavit, the employer may come forward with appropriate alternative offer, if he/they so desire.
Further, since such suggestion is not made by M/s. Riya Enterprises it is, even otherwise, not possible to identify the persons for whom specific and definite offer is made.
13.1 At this stage, it is not necessary to preempt the said issue. Suffice it to say that the condition prescribed under Section 17-B is a statutory obligation.
The said obligation comes in operation on its own force in view of the language of the provision which obliges employer to pay last drawn wages "during pendency of the proceedings before the High Court or Supreme Court" and Page 17 Downloaded on : Sat Jul 27 01:52:55 IST 2019 C/SCA/10682/2015 ORDER without express direction by the Court (while admitting the petition and while granting interim relief). The said provision, at the same time, impose obligation on the concerned workmen to declare on affidavit that he is not gainfully employed which is evident from the provision under Section 17-B which prescribes, inter alia, that "an affidavit by such workman had been filed to that effect in such Court".
13.2 Therefore, the issue or apprehension which are expressed by both sides at this stage with regard to compliance of condition prescribed by Section 17-B can be considered at the time when the workmen file affidavit and the employer respond to the said affidavit/make any specific and definite offer with specific detail to each workmen individually.
13.3 At this stage, any other or further direction or clarification is not warranted except reiterating the statutory obligation viz. that the employer is obliged to comply the condition prescribed under Section 17-B, during pendency of these petitions and during operation of the interim relief.
(K.M.THAKER, J) KAUSHIK D. CHAUHAN Page 18 Downloaded on : Sat Jul 27 01:52:55 IST 2019