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2007 Supreme(Guj) 654
2008 (1) GCD 80 (Guj)
Hon’ble Mr. Justice S.R. Brahmbhatt
M.J. Patel
Versus
Tata Chemicals Ltd.
Civil Application for Orders No. 6403 of 20071
Decided on 23/10/2007
Point in Issue :
Whether appellant workman is entitled to last drawn wages during pendency of main proceedings?
Headnote:Head Note :
Industrial Disputes Act, 1947 (14 of 1947) — Section 17(b) — Wages to workman — Pending proceedings — Claim for — Sustainability — Finding as to — Court granted ad-interim relief staying the operation of award of Labour Court of reinstatement with 75% back wages — The workman present applicant has preferred this application seeking direction to petitioner company present opponent for paying last drawn wages pending main petition — The company has resisted on relying upon the applicant’s engagement in trade union activities and alleged acts for conducting the case of workers on remuneration — The company has not led any acceptable evidence in support of it’s contention and has mainly relied on affidavits which do not prove beyond doubt that the applicant has in fact received remuneration for conducting cases — The payment alleged towards union activities cannot also be said to be payment of remuneration — Court also examined the contention with regard to the applicant’s engaging in share trading activities — The Deemat Account of the applicant indicates that applicant is not a person trading in shares — The income earned on the investment of shares and by it’s selling on occasional basis cannot be in any way classified to be remuneration as provided under the provisions of the Act — In the background of facts Court directed the Company to pay applicant his last drawn wages from date of this application.
Held :
The company has mainly resisted this application on relying upon the applicant’s engagement in trade union activities and alleged act for conducting the cases of workers and that the applicant is receiving remuneration. The applicant has categorically denied this averment of the company and submitted that the company has merely produced only affidavits from sponsored people and they cannot be therefore made basis for denying the benefit of Section 17-B of the applicant. The company has further relied upon the applicant’s trading in shares and stocks indicating that he is receiving sizeable income from these activities and therefore he cannot be given benefit of Section 17-B of the ID Act. The applicant has in his affidavit in rejoinder and the further affidavit pointed out that the company has failed in adducing any cogent evidence to establish that the applicant was in receipt of remuneration for rendering his services to fellow workers in conducting their cases. [Para 8]
This Court is of the view that the affidavits relied upon by the company which are sole basis for making allegation cannot be said to be acceptable evidences proving beyond doubt that the applicant has infact been in receipt of remuneration for conducting the cases.
[Para 8.1]
The payment towards union activities in the account of union by the members and others involved in the activity cannot be said to be payment to the applicant so as to classify the same to be remuneration in any sense. [Para 8.1]
The contention with regard to the applicant’s engaging in share trading activity deserves to be examined in light of the provisions of Section 17-B and the voluntary statement produced by the applicant of his Deemat Account. The trading in shares as it appears from the statement of the Deemat Account do not indicate that the applicant infact trading in shares on a regular basis so as to term him to be a “person trading in shares”. The transactions recorded in the Deemat Account do not go to show that the applicant had been regularly in the business of trading of shares etc. The earning out of his investment in the shares cannot be termed to be remuneration except it is established that the applicant’s earning out of trading in shares is on account of his engagement on regular basis and share trading is his regular activity occupying his time, energy and skill. In other words, the income earned on the investment of shares and by its selling on occasional basis cannot be in any way classified to be remuneration as contained under Section 17-B of the ID Act and, therefore, this Court is of the view that the plea of the company deserves to be rejected on this count also. [Para 9]
Law Laid Down :
In the proceedings for receiving benefit under Section 17-B of the Act plea that appellant is not workman could not be availed of by opponent.
Case Law Analysis :
State of Gujarat vs. Shankarbhai K. Parmar, 2001 (3) GLH 431 [Para 4];; Bhanulal Khimjibai Solanki vs. Deputy Executive Engineer, 2004 (3) GLH 375 [Para 4];; Ratnamani vs. Sunilkumar, LPA No. 762/03, decided on 15.03.2005 [Para 4];; Dholka Nagar Palika vs. Dasrathbhai R. Rabari, 2005 JX (Guj) 329 [Para 4].—Relied on
North East Karnataka Road Transport Corporation vs. M. Nagangouda, 2007 (1) Scale 125 [Para 6];; Shah Alpesh Dineshchandra vs. Sharda Constructions Pvt. Ltd., Civil Application for Direction No. 14078 of 2006 in Special Civil Applications No. 5505 of 2006, decided on 13.02.2007 [Para 6.1].—Distinguished
Appearance :
Mr. Rajesh P. Mankad, for the Petitioner.
Mr. K.M. Patel, for the Respondent.
Conclusion :
Court held that in the background of facts Company respondent was required to pay applicant his last drawn wages till decision in the main proceedings.
Decided in Favour of :
Appellant
Application Allowed
S.R. Brahmbhatt, J.—The applicant herein-respondent in Special Civil Application No. 669 of 2007 has approached this Court for receiving last drawn wages as provided under Section 17(B) of the Industrial Disputes Act, 1947 (hereinafter referred to as the ‘ID Act’ for the sake of brevity) as the opponent in the present application-petitioner in Special Civil Application No. 669 of 2007 has challenged the award dated 06.12.2006 passed by the Labour Court, Jamnagar in Reference (LCJ) 372 of 1993 ordering reinstatement of the present applicant on his original post with 75% back-wages with cost of Rs. 5000/- on the ground that the action of the opponent company was found to be malafide by way of victimizing the workman and contrary to the principles of natural justice and without following the provisions of the ID Act.
2. This Court (Coram: R.M. Doshit, J.) vide order dated 09.01.2007 issued Rule and granted ad-interim reliefs in terms of Para 5(b) of the main matter. Para 5(b) is in respect of staying the operation, implementation and effecting of the award dated 06.12.2006 passed by the Labour Court, Jamnagar in reference (LCJ) 372 of 1993. The concerned workman-present applicant, therefore, preferred an application seeking direction to the petitioner company-present opponent for praying last drawn wages to the applicant pending the aforesaid petition.
3. Mr. R.P. Mankad, learned Advocate appearing for the applicant has submitted that the opponent company has failed in establishing by evidence that the applicant is employed in an establishment and has been receiving adequate remuneration so as to deny him the benefit of Section 17-B of the ID Act. Mr. Mankad has invited the attention of this Court to the averments made in the application as well as the averments made in the rejoinder and sur rejoinder and submitted that the allegation of the applicant receiving fees for conducting cases of some of the Union members of the opponent and even outsiders cannot be said to be sustainable merely on the ground of some affidavits which the opponent has obtained from some of the persons.
3.1. Mr. Mankad has submitted that the applicant has made specific averment in the rejoinder that the applicant being the President of the Union of workmen was duty bound to conduct the cases before the Labour Court and the Industrial Tribunal and conducting cases on behalf of the fellow workers cannot be said to be either an employment of services rendered against remuneration. With regard to the allegation of enjoying free housing facility by the company, learned Counsel for the applicant has also submitted that the quarter allotted to him at the company’s township has been handed over to the company long back as the company had filed Civil Suit No. 62 of 1994 in the Court Civil Judge, (J.D). The quarter in question referred by the company is actually alloted to the recognised union of the workers i.e. M/s. Tata Chemicals Skilled Mazdoor Sangh and the same is used for the trade union activities as the officer of the trade union is maintained therein. With regard to the allegation of receiving rental income a specific denial is made in the rejoinder in Para 9.
3.2. Mr. Mankad has invited the attention of this Court to the averments made by the applicant in Para 11 of this rejoinder and submitted that the issue with regard to one Ganga Munja Hathiya was of the year 1999 and it is clearly denied that any amount was collected as alleged in the affidavit. In respect of the affidavit of one Shri Haji Moosa, the workman applicant has stated that the union has collected struggle fund that has been paid by the opponent company to the union by cheque as per settlement terms and the amount so received is still lying in the bank account of the union. It is stated that it was proposed by the applicant that the amount was to be invested in the FDR so that said workers’ interest could be property served. The complainant who was the executing member of the committe
