Gujarat High Court
Vijaykumar Datratrey Punekar vs Taluka Development Officer & 2 on 3 July, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/11571/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11571 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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VIJAYKUMAR DATRATREY PUNEKAR....Petitioner(s)
Versus
TALUKA DEVELOPMENT OFFICER & 2....Respondent(s)
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Appearance:
MR. NISARG D SHAH, ADVOCATE for the Petitioner(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 03/07/2017
ORAL JUDGMENT
1. Heard Mr.Krishnan M. Ghavariya, learned 1 HC-NIC Page 1 of 20 Created On Sun Jul 23 08:10:16 IST 2017 C/SCA/11571/2017 JUDGMENT advocate for Mr.Shah, learned advocate for the petitioner.
2. In present petition, the petitioner has challenged order dated 13.4.2017 passed by the learned Labour Court in Recovery Application No.74 of 2013 whereby the learned Labour Court rejected the said application filed by present petitioner.
3. The factual backdrop involved in present petition shall be summarized thus.
4. The petitioner herein had raised dispute somewhere in 198889 with the allegation that the opponent employer (i.e. Taluka Development Officer) illegally terminated his service. Appropriate government referred the dispute for adjudication. The dispute was registered as Reference No.1889 of 1989.
5. In the said reference case, the claimant filed his statement of claim and alleged that he was working with the Taluka Panchayat as Karkoon 2 HC-NIC Page 2 of 20 Created On Sun Jul 23 08:10:16 IST 2017 C/SCA/11571/2017 JUDGMENT (Clerk), GradeIII and that he had joined service in July 1983. He also alleged that the opponent Taluka Development Officer illegally terminated his service on 31.8.1988 without following procedure prescribed by law and in breach of statutory provisions as well as in breach of principles of natural justice. The learned Labour Court decided the said reference vide award 21.9.1995. By the said award, the learned Labour Court directed the opponent Taluka Development Officer to reinstate the claimant with full backwages.
6. Feeling aggrieved by the said award dated 21.9.1995, Taluka Development Officer filed Special Civil Application No.3667 of 1997. During pendency of the said petition, the claimant had filed a civil application seeking direction against the petitioner employer for payment of wages in accordance with section 17B of the Industrial Disputes Act, 1947 ('the Act' for short). The said application was registered 3 HC-NIC Page 3 of 20 Created On Sun Jul 23 08:10:16 IST 2017 C/SCA/11571/2017 JUDGMENT as Civil Application No.8363 of 1998.
7. The said Civil Application No.8363 of 1998 came to be rejected vide order dated 21.10.1999.
7.1 Feeling aggrieved by the said order dated 21.10.1999, the claimant filed Letters Patent Appeal which was registered as Letters Patent Appeal No.1640 of 1999.
7.2 The Court, vide order dated 12.7.2005, allowed the appeal and directed the employer (Taluka Development Officer) to pay wages in accordance with section 17B of the Act.
8. Subsequently, this Court decided main petition, i.e. Special Civil Application No.3767 of 1997 vide judgment dated 9.5.2008. The learned single Judge, vide judgment dated 9.5.2008, remanded the case for fresh decision to the learned Labour Court.
8.1 While remanding the case for fresh
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decision, this Court directed that until the reference case is decided afresh, the direction to pay wages in accordance with section 17B of the Act will continue.
8.2 The relevant part of the said judgment dated 9.5.2008 in Special Civil Application No.3767 of 1997 reads thus:
"5. In view of the above, the impugned judgment and award dated 21.9.1995 passed by the Labour Court, Ahmedabad, passed in Reference L.C.A. No.1889 of 1989 inclusive of all other consequential order are hereby quashed and set aside. The matter is remanded to the Labour Court, Ahmedabad for deciding the same afresh in accordance with law and on merits after giving fullest opportunity to all concerned and giving them opportunity to lead appropriate evidence. In the facts and circumstances of the case and as the alleged termination is of 1989, the Labour Court is directed to decide and dispose of the reference on remand within a period of 12 months from today.
6. In the facts and circumstances of the case and as the respondentworkman is getting the benefit of Section 17B since 1997, it is directed that the same may be continued to be paid to the respondentworkman till the final disposal of the reference by the Labour Court. However, it is observed that the aforesaid interim arrangement would be without prejudice to the rights and contentions of the respective parties, and while deciding the reference, the Labour Court shall decide the reference in accordance with law and on merits in any way without being influenced by the present order and/or interim arrangement." (Emphasis supplied)
9. In pursuance of the said judgment dated 9.5.2008, the learned Labour Court decided 5 HC-NIC Page 5 of 20 Created On Sun Jul 23 08:10:16 IST 2017 C/SCA/11571/2017 JUDGMENT Reference No.1889 of 1989 afresh, vide award dated 1.6.2009.
9.1 By the said award dated 1.6.2009, the learned Labour Court partly allowed the reference and directed the Taluka Development Officer to reinstate the claimant, however, without backwages.
9.2 Thus, the learned Labour Court denied backwages for entire period viz. from date of termination (31.8.1988) till the date of said fresh award (1.6.2009) to the claimant. 9.3 It is important to note that the claimant - petitioner accepted the award dated 1.6.2009 which denies the backwages. 9.4 However, the employer, i.e. Taluka Development Officer challenged the award in Special Civil Application No.8267 of 2010.
10. The said Special Civil Application No.8267 of 2010 came to be dismissed vide order 6 HC-NIC Page 6 of 20 Created On Sun Jul 23 08:10:16 IST 2017 C/SCA/11571/2017 JUDGMENT dated 21.7.2010.
10.1 The Taluka Development Officer carried the matter in appeal and filed Letters Patent appeal No.556 of 2011 which also came to be dismissed vide order dated 24.1.2012.
11. Consequently, the award dated 1.6.2009 passed by the learned Labour Court (whereby the learned Labour Court partly allowed the reference and directed the Taluka Development Officer to reinstate the claimant without backwages) attained finality.
12. Upon conclusion of above mentioned proceeding after the order dated 24.1.2012 in Letters Patent Appeal No.556 of 2011, the claimant, i.e. present petitioner filed Recovery Application No.73 of 2013.
13. In the said recovery application, by ignoring the fact that according to the award dated 1.6.2009 backwages for entire period viz. from date of termination in 1988 to the date of 7 HC-NIC Page 7 of 20 Created On Sun Jul 23 08:10:16 IST 2017 C/SCA/11571/2017 JUDGMENT award, have been denied by the learned Labour Court, the claimant demanded Rs.12,78,216/ on the ground that for the period during which the High Court had directed the employer to pay wages in accordance with section 17B, he should be paid full wages with all increments and other allowances and all other benefits in view of the direction vide order dated 12.7.2005 in Letters Patent Appeal No.1640 of 1999 and the order dated 9.5.2008 in Special Civil Application No.3767 of 1997.
14. The learned Labour Court considered the said recovery application and by detailed, reasoned and speaking, order dated 13.4.2017, rejected the recovery application.
15. Feeling aggrieved by the said order, the claimant has taken out present petition.
16. Mr.Krishnan M. Ghavariya, learned advocate for Mr.Shah, learned advocate for the petitioner, submitted that the learned Labour 8 HC-NIC Page 8 of 20 Created On Sun Jul 23 08:10:16 IST 2017 C/SCA/11571/2017 JUDGMENT Court failed to appreciate that after the reference case was remanded by this Court by virtue of the judgment dated 9.3.2008 in Special Civil Application No.3767 of 1997, the Court had directed that the employer should continue to pay wages in accordance with section 17B and that after fresh award dated 1.6.2009, the learned Labour Court directed the employer to reinstate the claimant and since the employer did not reinstate the claimant, he would be entitled for all wages, benefits, allowances, etc. and that instead of appreciating the said claim and contention, the learned Labour Court arbitrarily rejected the recovery application. Learned advocate for the petitioner submitted that the order dated 13.4.2017 is incorrect, unjustified and arbitrary. He submitted that the learned Labour Court has failed to appreciate that for the period in question, the claimant should be considered eligible for wages and other benefits and that since the learned Labour Court has failed to appreciate the said important aspect, 9 HC-NIC Page 9 of 20 Created On Sun Jul 23 08:10:16 IST 2017 C/SCA/11571/2017 JUDGMENT the impugned award deserves to be set aside and the respondent Taluka Development Officer should be directed to pay all wages and benefits for entire intervening period.
17. I have considered submissions by learned advocate for the petitioner. I have also examined impugned order dated 13.4.2017. I have also considered judgment dated 9.5.2008 in Special Civil Application No.3767 of 1997, order dated 21.10.1999 in Civil Application No.8363 of 1998, and the orders in Special Civil Application No.3767 of 1997 as well as Letters Patent Appeal No.556 of 2011.
18. Before proceeding further, it is appropriate to mention, at the outset, that learned advocate for the petitioner declared and clarified that the claimant attained age of superannuation on 1.7.2011.
18.1 He also admitted that there is no dispute as to the fact that (a) for entire period 10 HC-NIC Page 10 of 20 Created On Sun Jul 23 08:10:16 IST 2017 C/SCA/11571/2017 JUDGMENT during which the reference (after remand vide High Court's order dated 9.5.2008) have been paid to the claimant; and that (b) even during the pendency of Special Civil Application No.3767 of 1997 the petitioner was regularly paid last drawn wages as per Section 17B in light of the order dated 12.7.2005 in Letters Patent Appeal No.1640 of 1999; and that (c) most importantly, he admitted the fact that the respondent paid full wages - with all allowances and benefits - to the claimant for the period post award dated 1.6.2009, i.e. from 1.6.2009 till 30.7.2011 when the claimant attained age of superannuation.
19. The factual background is not in dispute.
19.1 Reference No.1889 of 1989 came to be decided for the first time vide award dated 21.9.1995.
19.2 By the said award, the learned Labour Court directed the employer (Taluka Development 11 HC-NIC Page 11 of 20 Created On Sun Jul 23 08:10:16 IST 2017 C/SCA/11571/2017 JUDGMENT Officer) to reinstate the claimant (i.e. present petitioner) with full backwages. 19.3 However, it is pertinent to note that the said award came to be set aside and the reference case came to be remanded to the learned Labour Court for fresh decision vide judgment dated 9.5.2008 in Special Civil Application No.3767 of 1997, therefore the direction vide award dated 21.9.1995, more particularly the direction to pay backwages (or the direction to reinstate the claimant) did not survive. 19.4 Before proceeding further, it is relevant to note that during pendency of the said Special Civil Application No.3767 of 1997, the employer Taluka Development Officer was directed to pay wages to the claimant in accordance with section 17B of the Act. The said direction was issued vide order dated 12.7.1995 in Letters Patent Appeal No.1640 of 1999.
19.5 The said direction has been,
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undisputedly, complied by the respondent. 19.6 The Court, while remanding the proceeding of reference case to the learned Labour Court vide judgment dated 9.5.2008, directed that the employer shall continue to pay wages in accordance with section 17B of the Act until the reference case is finally adjudicated. 19.7 Even the said direction also, undisputedly, has been complied. 19.8 Ultimately, the learned Labour Court decided the reference vide award dated 1.6.2009. 19.9 By the said award, the learned Labour Court directed reinstatement of the claimant, however, without backwages.
19.10 Consequently, the ultimate direction in favour of the claimant is direction to the employer to reinstate the claimant, but without benefit of backwages.
19.11 During pendency of the reference case
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pursuance to the remand (vide judgment dated 9.5.2008) the claimant was, undoubtedly, entitled for wages in accordance with section 17B. 19.12 It is worthwhile to note at this stage that section 17B imposes obligation on the employer to pay 'last drawn wages' to the concerned employee.
19.13 The said provision would, therefore, oblige the employer to pay to the workman the wages he was drawing immediately before the date on which his service was terminated. 19.14 It is not in dispute that before the claimant's service came to be terminated his last drawn wages was Rs.1,460/.
19.15 It is also pertinent to recall that when the final award came to be passed, which has now attained finality, the final direction by the learned Labour Court is that the claimant should be reinstated without benefit of backwages (or without any other benefit like continuity of 14 HC-NIC Page 14 of 20 Created On Sun Jul 23 08:10:16 IST 2017 C/SCA/11571/2017 JUDGMENT service, etc.).
19.16 It is also relevant to recall at this stage that the claimant reached age of superannuation in July 2011.
20. From above mentioned facts, it emerges that during the period from 9.5.2008 (when the learned single Judge remanded the reference case for fresh decision to the learned Labour Court) until 1.6.2009 (when the learned Labour Court passed fresh - final award), the claimant was entitled only to 'last drawn wages' in view of the order dated 12.7.2005 in Letters Patent Appeal No.1640 of 1999 read with the order dated 9.5.2008 in Special Civil Application No.3767 of 1997.
20.1 Any other benefits of whatsoever nature including the backwages, increment, etc. have not granted to the claimant by any order of the learned Labour Court or High Court.
20.2 Under the circumstances, the only
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benefit which the claimant became entitled to on account of the orders passed in the petition and/or the appeal, was for payment of last drawn wages in accordance with section 17B from 12.7.2005 to 8.5.2008 and 9.5.2008 to 1.6.2009.
21. At this stage, it is necessary to mention that learned advocate for the petitioner has fairly admitted that the employer has regularly paid last drawn wages to the claimant during the said period and there is no dispute or claim or demand, so far as payment of last drawn wages under section 17B are concerned. 21.1 Besides this, it is also pertinent that the claimant himself, before the learned Labour Court, admitted that so far as full backwages for period from 1.6.2009 (i.e. the date when the learned Labour Court passed fresh award under reference case with direction to the Taluka Development Officer to reinstate the claimant without backwages) until July 2011 (the date when he attained age of superannuation), the opponent 16 HC-NIC Page 16 of 20 Created On Sun Jul 23 08:10:16 IST 2017 C/SCA/11571/2017 JUDGMENT employer has paid him full wages and that there is no dispute with regard to the payment of wages for the period after the date of award, i.e. 1.6.2009 until the date on which he attained age of superannuation.
22. In this background, the learned Labour Court examined the claim of the petitioner for backwages, increments, etc. for the period from 9.5.1997 to 31.12.1997 and from 1.1.1998 to 31.12.2008 and 1.1.2009 to 30.5.2009 at the rate claimed by the petitioner, i.e. Rs.10,277/ per month. For the said period, the claimant demanded Rs.12,78,216/.
23. Apparently and obviously the claim was not only astronomically inflated and unjustified but it was, by any standard, unsustainable in law and also on facts.
24. Above discussed facts bring out that the award dated 21.9.1995 passed by the learned Labour Court (whereby the learned Labour Court 17 HC-NIC Page 17 of 20 Created On Sun Jul 23 08:10:16 IST 2017 C/SCA/11571/2017 JUDGMENT directed the employer to reinstate the claimant with full backwages) came to be set aside by the Court vide order dated 9.5.2008 in Special Civil Application No.3767 of 1997 and the reference case came to be remanded. Subsequently, vide award dated 1.6.2009, the learned Labour Court again partly allowed the reference and directed the employer to reinstate the claimant, however, without backwages. Under the circumstances, from the alleged date of termination in August 1988 until 1.6.2009, the claimant would not be entitled for backwages. The only benefit which the claimant would be entitled to, would be last drawn wages under section 17B of the Act in view of the order dated 12.7.2005 in Letters Patent Appeal No.1640 of 1999 read with judgment dated 9.5.2008 in Special Civil Application No.3767 of 1997.
25. As mentioned above, even learned advocate for the claimant accepted and admitted that the wages payable under section 17B of the 18 HC-NIC Page 18 of 20 Created On Sun Jul 23 08:10:16 IST 2017 C/SCA/11571/2017 JUDGMENT Act have been paid and there is no dispute or claim with regard to the said benefit. Moreover, before the learned Labour Court, the claimant himself admitted that full wages from 1.6.2009 (i.e. after the date of fresh award directing the reinstatement without backwages) have been paid to the claimant until 30.7.2011 when he attained age of superannuation.
26. In this view of the matter, it cannot be said that the learned Labour Court has committed any error in rejecting the recovery application. 26.1 Undoubtedly, the claimant is not entitled for any wages from the date of termination until the date he attained age of superannuation.
26.2 The only benefit which he would be entitled for, was wages in accordance with section 17B of the Act, which has, undisputedly, been paid to the claimant and that, therefore, the claimant had no basis or justification for 19 HC-NIC Page 19 of 20 Created On Sun Jul 23 08:10:16 IST 2017 C/SCA/11571/2017 JUDGMENT any claim whatsoever, much less for Rs.12,78,216/ and the claimant failed to make out any case in the recovery application. The learned Labour Court rightly appreciated and reached to correct conclusion which does not warrant interference. The petition, therefore, fails and deserves to be rejected and that, therefore, the same is hereby rejected.
Sd/-
(K.M.THAKER, J.) Bharat 20 HC-NIC Page 20 of 20 Created On Sun Jul 23 08:10:16 IST 2017