Gujarat High Court
Jashwantbhai Galabhai Harijan vs State Of Gujarat on 24 January, 2024
NEUTRAL CITATION
C/SCA/16538/2022 ORDER DATED: 24/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16538 of 2022
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JASHWANTBHAI GALABHAI HARIJAN
Versus
STATE OF GUJARAT
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Appearance:
MR UT MISHRA(3605) for the Petitioner(s) No. 1
MS SUMAN MOTLA, AGP for the Respondent(s) - State
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 24/01/2024
ORAL ORDER
1. Rule returnable forthwith. Learned Assistant Government Pleader Ms. Suman Motla waives service of notice of rule on behalf of the respondent - State.
2. The workman as petitioner has filed this petition with the following prayers: -
(A) That Your Lordships be pleased to issue an order, direction and/or writ in the nature of certiorari and/or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 19-3-2020, passed by the Labour Court, Anand, in Recovery Application no.
45/2006, as being illegal and contrary to the Page 1 of 12 Downloaded on : Fri Feb 09 20:57:14 IST 2024 NEUTRAL CITATION C/SCA/16538/2022 ORDER DATED: 24/01/2024 undefined provisions of Industrial Disputes Act and be pleased to direct the respondent to pay the wages as per the Recovery Application.
(B) Your Lordships be further pleased to direct the respondent to pay the wages along with 10% interest on the amount which the petitioner is entitled as per the Award passed by the Labour Court in Reference (LCA) No. 131/1991, re-numbered as Reference (LCA) No. 29/1993, confirmed by this Hon'ble Court in SCA No.1039/2004 (C) Any other and such further relief as the Hon'ble Court deems fit and proper in the interest of justice.
3. The facts in brief as referred in the petition are as under:
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The petitioner - workman was initially appointed in the service of the respondent on 01.01.1979. His service came to be terminated on 24.08.1982. The workman raised industrial dispute before Labour Court, Anand challenging his termination, registered as Reference (LCA) No. 131 of 1991. The Labour Court, Anand upon adjudication of reference passed an award dated 14.08.2003 directing the respondent - State to reinstate the workman with continuity of service and granted 70% backwages. The award of the Labour Court dated 14.08.2003 was challenged by the State in Special Civil Application No. 1039 of 2004 wherein, co-ordinate bench of Page 2 of 12 Downloaded on : Fri Feb 09 20:57:14 IST 2024 NEUTRAL CITATION C/SCA/16538/2022 ORDER DATED: 24/01/2024 undefined this Court vide order dated 10.12.2012 while partly allowing the petition confirmed the order of reinstatement with continuity of service, and quashed and set aside 70% backwages. It is case of the petitioner that upon reinstatement being confirmed by this Court, a letter dated 15.10.2013 was addressed to the respondent to permit him to resume duties.
However, the respondent did not permit the workman to resume duties. R.P.A.D. notice was also addressed to the respondent. Since, no response was received, one more representation dated 28.10.2015 was sent requesting the respondent - State to permit workman to resume duties.
3.1 It is case of the petitioner that despite several communications, no response was received and the workman was not allowed to resume duties. Consequently, the workman filed Recovery Application No. 45 of 2016 for payment of wages from the date of award till date of reinstatement. The Labour Court rejected the Recovery Application No. 45 of 2016, aggrieved by which present petition is filed. The workman was thereafter reinstated w.e.f. 18.08.2022.
4. Heard learned advocate Mr. U. T. Mishra for the petitioner and learned Assistant Government Pleader Ms. Suman Motla for the respondent - State.
5. Learned advocate Mr. U. T. Mishra for the petitioner - workman submitted that in view of Section 17 and 17A of the Industrial Disputes Act, 1947, the award of the Labour Court is enforceable after a period of 30 days. In this case, no stay has been granted by the Court against reinstatement and therefore Page 3 of 12 Downloaded on : Fri Feb 09 20:57:14 IST 2024 NEUTRAL CITATION C/SCA/16538/2022 ORDER DATED: 24/01/2024 undefined the petitioner is entitled for the wages upon completion of 30 days from publication of the award in the Government Gazette till the date of reinstatement. The publication as per section 17 was done on 17.10.2003. Further, the petition filed by the State challenging reinstatement was dismissed and therefore, the workman is entitled for the wages upon completion of 30 days of publication of award till the date of reinstatement. The said period is from 18.11.2003 to the date of reinstatement on 18.08.2022. Since the workman was entitled for the wages for the said period, he preferred Recovery Application under Section 33(C)(2) of the Act. The same ought to have been allowed by directing the respondent - State to pay wages. Since the workman was entitled for wages for the period referred herein above, the rejection of the recovery application by an order dated 19.03.2020 under Section 33(C)(2) of the Act, is erroneous and deserves to be quashed and set aside.
5.1 In support of his submissions, he relied upon the decision of Hon'ble Supreme Court in the case of Salim Ali Centre for Ornithology and Natural History, Coimbatore & Another V/s Dr. Mathew K. Sebastian reported in 2022 Livelaw (SC) 377 and the decisions of this Court (i) dated 11.04.2022 in Special Civil Application No. 17409 of 2018, and (ii) dated 24.02.2015 in Special Civil Application No. 11589 of 2004.
6. On the other hand, learned Assistant Government Pleader Ms. Suman Motla for the respondent - State submitted that the order dated 19.03.2020, rejecting recovery application under Section 33(c)(2) of the Act is appropriate and no interference is called for. She submitted that the workman was gainfully Page 4 of 12 Downloaded on : Fri Feb 09 20:57:14 IST 2024 NEUTRAL CITATION C/SCA/16538/2022 ORDER DATED: 24/01/2024 undefined employed after termination which has been recorded by the Labour Court and therefore also, he would not be entitled for wages for the period referred in the petition. Moreover, since the workman had not worked for the said period, principle of 'no work no pay' would be applicable and he would not be entitled for the wages. She therefore submitted to reject the petition.
7. Having heard the learned advocates for the respective parties and having perused the decisions relied upon, it is noticed that the award dated 14.08.2003 directing the respondent - State to reinstate the workman with continuity of service and 70% backwages was challenged in Special Civil Application No. 1039 of 2004, wherein this Court only quashed the award of 70% backwages and confirmed the order of reinstatement with continuity of service. The date of publication of award was 17.10.2003. Section 17 of the Act provides for publication of an award within 30 days from the date of award and Section 17A provides that the award published u/s 17, shall become enforceable on the expiry of thirty days from the date of publication. Therefore, in view of clear language of Section 17 read with Section 17A of the Act, in this case award became enforceable on expiry of 30 days from the date of its publication under Section 17 of the Act. From the record, it is evident that several communications have been addressed by the workman seeking reinstatement however, the same was effected only by an order dated 18.08.2022. Further, it is not in dispute that this Court by an order dated 10.12.2012, in Special Civil Application No. 1039 of 2004 has confirmed the order of reinstatement and during Page 5 of 12 Downloaded on : Fri Feb 09 20:57:14 IST 2024 NEUTRAL CITATION C/SCA/16538/2022 ORDER DATED: 24/01/2024 undefined pendency of SCA 1039 OF 2004, no stay was granted.
7.1 In the case of Salim Ali Centre for Ornithology and Natural History, Coimbatore [SUPRA], the Hon'ble Supreme Court, in relation to grant of wages under section 17B of the Act has held as under: -
"6. Now so far as the submission on behalf of the petitioners herein that the writ petitioner had not established and proved by leading cogent evidence that he was not gainfully employed is concerned, it is to be noted that once the writ petitioner came out with a specific case that he remained out of employment for the period from 23.08.2002 to 30.04.2007 and that he was gainfully employed during the period from 01.05.2007 to 20.01.2011, meaning thereby, that he was not gainfully employed for the period between 23.08.2002 to 30.04.2007, thereafter, he was not required to lead any further evidence to prove the negative. Even in the case of J.K. Synthetics v. K.P. Agrawal (supra), it is specifically observed by this Court that an employee cannot be asked to prove the negative. However, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Thereafter the employee is not supposed to prove the negative that he was Page 6 of 12 Downloaded on : Fri Feb 09 20:57:14 IST 2024 NEUTRAL CITATION C/SCA/16538/2022 ORDER DATED: 24/01/2024 undefined not gainfully employed. There cannot be any evidence to prove the negative to the effect that he is not gainfully employed. Once he asserts that he is not gainfully employed, thereafter the onus will shift to the employer positively and it would be for the employer to prove that the employee was gainfully employed. Therefore, in the facts and circumstances of the case, none of the decisions relied upon by the learned ASG, referred to hereinabove, is of any assistance to the petitioners, considering the facts and circumstances, narrated hereinabove.
7. As far as the submission on behalf of the petitioners that even on the principle of "no work no pay", the writ petitioner shall not be entitled to back wages is concerned, the said principle shall not be applicable to the facts of the case on hand, where the employee remained unemployed due to the stay order granted by the appellate court. It was the management who preferred the appeal and at the instance of the management, there was an order of stay against reinstatement as ordered by the learned Single Judge and the appeal came to be dismissed and consequently the stay came to be vacated in the year 2010. Therefore, the employee/writ petitioner/respondent Page 7 of 12 Downloaded on : Fri Feb 09 20:57:14 IST 2024 NEUTRAL CITATION C/SCA/16538/2022 ORDER DATED: 24/01/2024 undefined herein cannot be denied the back wages for no fault of his. Therefore, the principle of "no work no pay" shall not be applicable in such a situation."
7.2 Moreover, the co-ordinate bench of this Court in order dated 11.04.2022 in Special Civil Application No. 17409 of 2018 has held as under: -
"8. Thus, the right of the respondent workman was crystallized when the award was passed by the Labour Court in favour of the respondent and when this Court has dismissed the petition filed by the petitioner. Thereafter, the respondent workman was reinstated on 3.9.2014. Therefore, the respondent is entitled to get wages from the date of the award passed by the Labour Court till he was reinstated. However, the said wages were not paid to the respondent and therefore he filed recovery application under Section 33C(2) of the Industrial Disputes Act before the Labour Court. The Labour Court has therefore, after considering the facts and circumstances of the present case, partly allowed the said application and thereby direction was issued to the petitioner to pay Rs.2,86,947.60 ps. to the respondent. It is pertinent to note that while passing the said order, the Labour Court has considered Page 8 of 12 Downloaded on : Fri Feb 09 20:57:14 IST 2024 NEUTRAL CITATION C/SCA/16538/2022 ORDER DATED: 24/01/2024 undefined the fact that as per the case of the respondent, he was getting Rs.2296/- when his services were terminated in October, 2003. It is also observed by the Labour Court that the present petitioner has not challenged the said evidence and therefore the Labour Court has rightly believed that the respondent was getting Rs.2296/- when his services were terminated in the year 2003. The Labour Court has, thereafter, also observed that the respondent is entitled to get minimum wages for a period of 21 months for the period between 1.12.2012 to 3.9.2014. The Labour Court has also considered the fact that Rs.50,000/- was paid by the petitioner to the respondent and therefore the said amount is deducted from Rs.3,36,997/- which the respondent was entitled to get from the petitioner. Thus, after deducting the said amount, now the direction is given the petitioner to pay Rs.2,86,947.60 ps. to the respondent. Thus, the Labour Court has not committed any illegality while passing the impugned order."
7.3 In the decision of this Court in the case of Deesa Nagarpalika V/s Hiralal Girdharilal Khatri in Special Civil Application No. 11589 of 2004, it is held as under:-
Page 9 of 12 Downloaded on : Fri Feb 09 20:57:14 IST 2024NEUTRAL CITATION C/SCA/16538/2022 ORDER DATED: 24/01/2024 undefined "13. It is hardly required to be stated that if the award is interfered with and the same is modified it would stand on different footing and on different consideration, but if the award for reinstatement is not interfered with, the consequence of law would be that the workman would be entitled to wages after expiry of period of one month from the date of the award until the workman actually reinstated minus the amount already paid to him by way of compliance to the provisions under Section 17B of the Act and the reason being that if this Court had not stayed the award vide interim order dated 21.09.2004, the workman would be entitled to reinstatement and regular wages. But by the interim order, the reinstatement is stayed on condition to comply with the provisions under Section 17B of the Act. If the ultimate outcome is that the workman is entitled for reinstatement, he would be entitled to the wages after expiry of period of one month from the date of the award until actual reinstatement minus the amount paid to him by the employer by way of compliance to the provisions of Section 17B of the Act. Under these Page 10 of 12 Downloaded on : Fri Feb 09 20:57:14 IST 2024 NEUTRAL CITATION C/SCA/16538/2022 ORDER DATED: 24/01/2024 undefined circumstances, as observed hereinabove, the workman would be entitled to the wages after 08.01.2004 onwards until he is actually reinstated minus the amount already paid to him by the employer by way of compliance to the provisions under Section 17B of the Act as per the interim order dated 21.09.2004.
14. In view of the aforesaid observations and discussions, the judgment and award passed by the Labour Court dated 08.12.2003 for reinstatement of the workman without backwages is not interfered with, however, after the date of the award, the workman would be entitled to the amount as wages, as aforesaid, minus the amount already paid to him by way of compliance to the provisions under Section 17B of the Act as per interim order dated 21.09.2004."
8. In view of above, revisitation of the facts of the present case reveals that the concept of "no work no pay" would not be applicable to the facts of the present case since it is the respondent which did not grant reinstatement inspite several representations and it was only on 18.08.2022 that reinstatement came to be granted. Therefore, this contention of the respondent deserves to be rejected. Additionally, the respondent's contention that the petitioner was gainfully Page 11 of 12 Downloaded on : Fri Feb 09 20:57:14 IST 2024 NEUTRAL CITATION C/SCA/16538/2022 ORDER DATED: 24/01/2024 undefined employed is not liable for countenance since neither reply has been filed by the respondent nor is any document placed on record before this Court to prove the petitioner's gainful employment. Thus, in the opinion of this court, the workman is entitled to receive from the employer his wages which is capable of being computed in terms of money.
9. In view of above, following order is passed:
9.1 The order of the Labour Court dated 19.03.2020 rejecting the Recovery Application under Section 33(c)(2) of the Act is hereby quashed and set aside.
9.2 The recovery application No 45 of 2006 is ordered to be restored to the file of Labour Court. Once restored, the Labour Court shall decide the application in accordance with law and in light of the observations made hereinabove.
10. With the above observations and directions, this petition is partly allowed. No order as to costs. Rule is made absolute.
(MAUNA M. BHATT,J) SHRIJIT PILLAI Page 12 of 12 Downloaded on : Fri Feb 09 20:57:14 IST 2024