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Gujarat High Court
Judgename :H.K.RATHOD
ANWAR HUSSAIN SATAR - Appellant
Versus
GUJARAT MARITIME BOARD - Respondent
SPECIAL CIVIL APPLICATION 8063 Of 2004
Decided On : 11/22/2007
Whether applicants are entitled to get higher wages that on basis of last drawn years back?
Head Note :
Industrial Disputes Act, 1947 (Central Act 14 of 1947) - Section 17-B - Payment of wages - Pending proceedings - On basis of last drawn - Claim for current wages - Scope of - Finding as to - Applicants are getting last drawn wages of Rs. 673/651 depending on days in the month 31 or 30 - Where as permanent employees of petitioner Board are getting current net wages after deduction Rs. 5781 p.m. - It is contended by applicant and not without force that what even applicant were getting on basis of last drawn in year 1988 when their service were terminated is too low to survive in year 2007 - The applicants are not able to maintain their family and they are actually living in starvation conditions - In the circumstances this Court can exercise its discretionery power under the Constitution and grant fair and reasonable amount of higher wages being minimum wages for enabling the applicants is to maintain themselves and their families as are interlocutory or interim measure because it is not still certain as to when the main matter of year 2004 will be finally heard and decided - Court therefore safeguarding the interest of the employer allowed the application of applicants directing the applicants to refund back the amount of difference of higher wages and amount payable to them on basis of their last pay drawn in case award of reinstatement is ultimately setaside - Such undertaking will be filed by applicants individually and thereafter petitioner shall pay within fifteen days the difference between last drawn wages paid to the applicants and current minimum wages of unskilled category with DA as revised from time to time from 01.09.2007 to 30.11.2007 and thereafter regularly till the matter is finally heard and decided by the Court.
Held :
As per Court view, amount of Section 17-B last drawn wages which is being received by the applicants is grossly insufficient for maintenance of the applicants and their respective families and if just and fair amount of higher wages in lieu thereof is not ordered, then, applicants and their families will have to starve and to suffer. It is inadequate for maintaining families of the applicants in these hard days of price escalation when the prices are day by day going to climb the sky. Right to life includes right to livelihood guaranteed under Article 21 of the Constitution of India. If the applicants are not able to maintain livelihood with such small amount, then, in the facts of the case and in view of the decisions referred to above, this Court can exercise powers under Article 226 of the Constitution of India and can grant fair and reasonable amount of higher wages being minimum wages for enabling the applicants to maintain themselves and their families, as an interlocutory or interim measure because it is not certain as to when the main matter of the year 2004 will be heard finally. It is more so when the petitioner is not ready to reinstate the applicants in service even subject to ultimate out come of the main matter. Therefore, while safeguarding the interest of the employer, present application is required to be allowed by directing the applicants to refund back the amount of difference of such higher wages and the amount payable to them under Section 17-B of the Industrial Disputes Act, 1947, i.e. Full wages last drawn by them in case if the award of reinstatement is ultimately set aside at the time of final disposal of the main matter. In this matter, more than 19 years have passed from the date of termination of their service and that is justifying their demand for higher wages in the form of minimum wages. [Para 16]
In view of these facts, according to Court opinion, applicants should be granted minimum wages as higher wages because the wages received now by the applicants as last drawn wages is very lesser than the minimum wages, therefore, according to my opinion, applicants are entitled for the minimum wages prescribed by the State of Gujarat for the category of industry where the applicants were working with the petitioner and that can be granted by this Court in their favour and not the regular wages or the wages which are received by permanent employees under the petitioner. [Para 17]
It is directed to the petitioner to pay present/current minimum wages as specified by the State of Gujarat in notification for unskilled workmen with DA as revised from time to time to the concerned employees i.e. present applicants excepting two employees at Serial Nos. 11 and 15, those who have expired during the pendency of proceedings with effect from 01.09.2007. Applicants shall have to file undertaking before this Court that in case if the petitioner Board ultimately succeeds in the main matter and the award of reinstatement is set aside in these proceedings, then, they will refund the difference between higher wages and the last drawn wages as per Section 17-B of the Industrial Disputes Act, 1947 to the petitioner as per the directions that may be issued in these proceedings by this Court while disposing of the main matter at the time of final hearing. [Para 18]
Law Laid Down :
Right to life includes right to liveli hood guaranteed under Article 21 of Constitution.
Conclusion :
Applicants are entitled to get fair and reasonable amount of higher wages being minimum wages for enabling them to maintain themselves and their families as an interim measure because it is not certain when main matter will be finally decided.
Cases Referred :
Navinchandra Laxmidas Mandavia vs. State of Gujarat & Ors., 1999 Lab IC 3730;; Dena Bank vs. Kiritkumar T. Patel, AIR 1998 SC 511;; Standard Chartered Grindlays Bank Ltd. and Govind Phopale & Anr., 2003 (96) FLR 145;; Fakirbhai, 1986 (52) FLR 688 (SC);; C.E.S.E. Ltd. vs. Subhash Chandra Bose, 1992 (64) FLR 248 (SC);; Mehsana District Cooperative Milk Producers Union Ltd. vs. Ganeshbhai M. Chaudhary, 2001 (1) GLH (UJ) 14;; Dena Bank vs. Kiritkumar T. Patel, 1997 (2) SCC 996;; Regional Authority, Dena Bank & Anr. vs. Ghanshyam, AIR 2001 SCW 2150;; Dena Banks, AIR 1998 SCW 87 = AIR 1998 SC 11 = 1998 Lab IC 578;; Workmen Employed under it by Shramik Sena vs. Raptakos Breet & Co. Ltd., 2007 (III) CLR 354;; Regional Authority, Dena Bank & Anr. vs. Ghanshyam, 2001 (II) CLR 901;; Paramjit Singh Ahuja vs. Presiding Officer, Labour Court VI & Ors., Suman Lata Tuleja & Ors., 2006 (3) LLN 1017;; Food Corporation of India vs. Shyamal K. Chetterjee & Ors., 2000 (II) CLR 850;; Contract Laghu Udhyog Kamgar Union vs. V.G. Mohite, Assistant Labour Commissioner, Thane & Ors., 2001 (II) CLR 1011;; Dena Banks 1998 (I) CLR 191 (SC) = 1998 (92) FLR 309;; Food Craft Instt. vs. Rameshwar Sharma & Anr., 2007 (II) LLJ (Del);; Fouress Engineering (India) (Pvt.) Ltd. vs. Delhi Administration, 1992 (I) LLJ 710;; Confederation of Ex-Servicemen Association & Ors. vs. Union of India & Ors., 2006 (8) SCC 399;; Munn vs. Illinois, 1877 (94) UC 113 = 1877 (24) L ED 77.
Decided in Favour of :
Appellant
Application Allowed
( 2 ) IN the main matter being Special Civil Application NO. 8063 of 2004, the petitioners are challenging the award made by the Industrial Tribunal, Rajkot in Reference (IT) NO. 160 of 1991 dated 29th November, 2003 wherein the Industrial Tribunal Rajkot has partly allowed reference and granted reinstatement in favour of the present applicants being Safai Kamdar on the basis of original seniority of the year 1982 and not granted any amount of back wages for an interim period. Services of the present applicants were terminated on 30. 9. 1988 against which the reference was made by the appropriate Government on 8th August, 1991. In the main matter, rule was issued by this court and initially ad interim relief in terms of para 9 (C) was granted on 13. 7. 04 which was subsequently confirmed by this court on 14. 12. 2004 subject to compliance of section 17b of the ID Act, 1947 by the petitioner Board. Accordingly, affidavit in reply was filed by the respondents no. 1 to 15 and specific averments were made by the respondents that they are prepared to work as they are not employed in any establishment and they are also not gainfully employed and, therefore, are entitled for the benefit of section 17b of the ID Act, 1947. On the basis of the averments made by the respondents in the affidavit in reply, benefit of section 17b of the ID Act, 1947 was extended in their favour by the petitioner in terms of the order passed by this court in CA No. 7398 to 7404 of 2005 dated 18. 8. 2005. Original petitioner was directed by this court to regularly pay wages under section 17b of the ID Act to the respondents till the final disposal of the main special civil application. Directions were issued by this court that the benefit of section 17b of the ID Act, 1947 should have to be given to the respondents with effect from 1st May, 2004. Through present civil application, the applicants original respondents are claiming current wages from the original petitioner. Learned Advocate Mrs. Bhatt submitted that the applicants are getting only last drawn monthly wages from the original petitioner regularly. She submits that out of fifteen employees, two have already expired during the pendency of proceedings and their family is not able to get anything from the original petitioner. This application is filed for getting current wages on the basis of the fact that they are getting last drawn wages of Rs. 673/- for the month consisting 31 days and Rs. 651/- for the month consisting 30 days which are the wages of the year 1988 and are too low. She also submits that the permanent employees of the petitioner Board are getting Rs. 6621/- per month as current wages out of which Rs. 840/- is being deducted and net current wages would come to Rs. 5781/- per month. As per her submission, amount of Rs. 673/651 per month as last drawn wages under section 17b of the ID Act, 1947 is too low to survive and, therefore, in such a meagre amount, the applicants are not able to maintain their family. Families of the applicants are facing serious hardships and because of the insufficient fund, it is difficult for the applicants to maintain themselves and their families and they have to virtually live in a starving condition and, therefore, she has prayed for directing the petitioner to pay current wages to the applicants.
( 3 ) AFFIDAVIT in reply has been filed to this civil application by the original petitioners. One Assistant Labour Officer of the petitioner has filed affidavit in reply opposing the application on
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