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2004 Supreme(Guj) 15
Gujarat High Court
Judgename :J.N.PATEL
T.J.SHUKLA - Appellant
Versus
SR.SUPDT.OF R.M.S. - Respondent
C.A.8472 of 2002
Decided On : 01/19/2004
Headnote:
Labour Law – Industrial Dispute Act – Daily wager – Workmen – Order of Termination – Reinstatement – Rejection of Special Civil Application filed by opponent challenging award of Labour Court and to direct opponent to fully comply with directions of Labour Court – Case of original petitioner that opponent was engaged as daily wager as Extra Departmental Mail Man and work was being assigned to him or his services were taken when regular employee was not available or there were some exigencies of work – As per original petitioner, during period when respondent was engaged, he was engaged for an average period of days in every month – Engagement of respondent was discontinued which ultimately gave rise to dispute under I. D. Act and thereafter there was reference to the Labour Court and ultimately impugned award has been passed by Labour Court whereby action of termination is declared to be illegal and respondent workman was ordered to be reinstated in service with back wages and consequential benefits – Held, Respondent was working as daily rated outsider, and his engagement was not for a continuous period in a month and after reinstatement, he will stand on the same position as it was prior to the impugned termination – If petitioner-department has reinstated the respondent workman and has offered work on the same basis as it was offered to him prior to termination, it cannot be said that there is improper reinstatement or that the reinstatement is not given full effect to – It has been stated by Mehta that whenever the work is available, it is being offered to the respondent workman, and therefore, availability of the work would depend upon the contingency, and if such contingency arises, respondent may legitimately claim work to be offered to him – Certainly, he cannot claim a higher right than which was prior to the termination. The consequence of reinstatement would be to restore the original position prior to the termination which, in my view, has been done by petitioner, and, therefore, it cannot be said that the reinstatement is not effected in true spirit – It cannot be said to be a compliance to the order of reinstatement in toto – Sufficient details are not placed before the Court for enabling the Court to examine the said aspect and in any event, the main Special Civil Application cannot be dismissed on such ground – Civil Application stands disposed of. (Paras 9 and 10)
( 1 ) RULE. Mr. Mehta waives service of rule. With the consent of the parties, this Civil Application is taken up for final hearing today.
( 2 ) THE present application is preferred to reject Special Civil Application No. 10296 of 2001 filed by the opponent challenging the award of the Labour Court and to direct the opponent to fully comply with the directions of the Labour Court.
( 3 ) HEARD Mr. Pathak, learned advocate for the applicant and Mr. Mehta for the respondent. For the purpose of convenience, the parties shall be referred to as they represent in the main Special Civil Application i. e. the applicant herein as the original respondent and the opponent as the original petitioner in the Special Civil Application.
( 4 ) IT is the case of the original petitioner that the opponent was engaged as daily wager as Extra Departmental Mail Man and work was being assigned to him or his services were taken when the regular employee was not available or there were some exigencies of the work. As per the original petitioner, during the period from 1986 to 1990 when the respondent was engaged, he was engaged for an average period of 11 to 13 days in every month. The engagement of the respondent was discontinued which ultimately gave rise to the dispute under the I. D. Act and thereafter there was reference to the Labour Court and ultimately the impugned award dated 20th August 2001 has been passed by the Labour Court whereby the action of termination is declared to be illegal and the respondent workman was ordered to be reinstated in service with backwages and consequential benefits. The said award of the Labour Court is under challenge in main Special Civil Application No. 10296 of 2001. In the main Special Civil Application, on 2. 11. 2001 this Court [coram: K. M. Mehta, J. ], while admitting the petition, has granted stay against the execution and implementation of the award. Thereafter, for invoking the provisions of section 17. B of the ID Act, Civil Application No. 5643/02 was preferred by the original respondent workman, and in the said application on 16. 09. 02 this Court [coram: R. R. Tripathi, J. ] had passed the following order:-"rule. Mr. B. I. Mehta waives service of rule. 2. THE present Civil Application is filed seeking direction against the opponent to pay current wages to the applicant from the date of the award and pay all arrears with 18% interest. Mr. B. I. Mehta, the learned advocate for opponent files an affidavit in reply. Taking into consideration, the contents of the Civil application and the contents of the affidavit in reply, the opponent is directed to adhere to and comply with the provisions of Section 17b of the Industrial Disputes Act during the pendency of this Special Civil Application. 3. THE Civil Application is disposed accordingly. Rule is made absolute. "
( 5 ) IT is the case of the original respondent-applicant herein that there is non-compliance with the provisions of section 17. B of the I. D. Act, and, therefore, the present petition should be dismissed. Affidavit-in-reply has been filed by Gamanbhai N. Patel, Superintendent of R. M. S. , SR Division, Surat, stating that the workman was reinstated since 12. 12. 2002 as Outsider-Extra Departmental Agent. It is also stated that arrears amounting to Rs. 16,992/_ was paid to him on 9. 1. 2003.
( 6 ) MR. Pathak, learned advocate for the original respondent-applicant herein submitted as per the view taken by the Division Bench of this Court [coram: D. K. Trivedi and S. D. Dave, JJ. ] in LPA No. 1319 of 2003 dated 8. 12. 2003 even for the purpose of section 17. B of the Act, minimum wages are required to be paid to the concerned workman and if there is revision in the minimum wages, then the wages paid are required to be accordingly revised. Mr. Pathak submitted that the work is being offered to the workman for 13 to 14 days and is not for continuous engagement for the full month. He submits that basing the minimum wages as Rs. 100/_ p
