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2008 Supreme(Guj) 130
2008 (2) GCD 1528 (Guj)
Hon’ble Mr. Justice H.K. Rathod
Gopalbhai Meghajibhai Kantia [Bhavnagar]
Versus
Superintending Engineer
Civil Application for Direction No. 14780 of 20071—Decided on 11/04/2008
Ms. Vinita Vinayak for M/s. Thakkar Assoc. for the Petitioners.
Mr. S.N. Sinha, for the Respondents.
Important Point :
Whether in the facts of the case petitioner is entitled to benefit under Section 17-B of the Act.
Headnote:Industrial Disputes Act, 1947 (Central Act 14 of 1947) — Section 17-B — Benefit under — Admissibility — Scope of — Finding as to — The Labour Court set asides the termination of petitioner and reinstated him with stoppage of five increments without cumulative effect and also awarded 75% back wages and continuity of service — This Court stayed the award of reinstatement and back wages — Therefore, petitioner has sought relief under Section 17-B of the Act of full wages which he claimed to be entitled — He has filed affidavit before the Court to the effect that he is not gainfully employed from the date of his termination by respondent — The Section 17-B of the Act is a mandate against employer that when the order of reinstatement is passed by Labour Court and if it is challenged before the higher forum then workman is entitled to the benefit under the provision provided that he is unemployed and not employed in any establishment and not receiving adequate remuneration from that establishment — In order to dislodge the claim of employes, the employee is required to prove by concrete evidence that the workman was employed in some establishment and was adequately paid — In the case the employer the respondent has failed to prove before the Court that workman is gainfully employed in any establishment — The workman petitioner is, therefore, entitled to the benefit under the provision on the ground that affidavit filed by workman remained unanswered that he was not employed gainfully in any establishment during the period — Court, therefore, passed the consequential is in favour of petitioner workman.
Held :
Section 17-B is a mandate against the employer when order of reinstatement is passed by Labour Court and if it is challenged before the higher forum by employer, then, workman is entitled the benefit under Section 17-B of the Industrial Disputes Act, 1947 provided that he is unemployed and not employed in any establishment and not receiving adequate remuneration from that establishment. This fact is to be proved by employer to the satisfaction of this Court by concrete evidence that workman is employed in any establishment. Looking to the language of Section 17-B, it is a duty of the employer to prove aforesaid facts by producing concrete evidence before this Court to the satisfaction of this Court. According to Court’s opinion, just to highlight sound financial family background of the concerned employee and also the highlight the properties belongs to family or concerned workman have no any adverse effect in respect to the claim of workman under Section 17-B of the Industrial Disputes Act, 1947. For the employer, a very limited scope is to prove before this Court by concrete evidence to the satisfaction of this Court that workman is employed in any establishment and receiving adequate remuneration. If employer is failed to do so, then, it is a legal obligation of the employer to pay wages to the respondent workman. [Para 10]
Original petitioner is failed to prove before this Court by cogent evidence that workman is employed in any establishment and receiving adequate remuneration from such establishment. Therefore, workman is entitled the benefit of Section 17-B of the Industrial Disputes Act, 1947 on the ground that the affidavit is filed by workman for his unemployed and not gainful employed in any establishment and receiving adequate remuneration from any establishment. [Para 14]
Petition Allowed
H.K. Rathod, J.—Heard the learned Advocates appearing on behalf of respective parties.
2. In main Special Civil Application No. 19234 of 2006, the original petitioner has challenged the award passed by Labour Court in Reference No. 459 of 1987 dated 13.04.2006. The Labour Court has set aside the termination order dated 25.12.1985 and instead of that, five increments are stopped without cumulative effect and directed to pay 75% backwages of interim period with continuity of service to respondent workman with consequential benefits. The Labour Court has also directed to original petitioner to take decision about sick leave for the period from 17.08.1983 to 31.08.1985.
3. This Court, initially, issue notice returnable on 06.10.2006 on 08.09.2006 and meanwhile, this Court has directed to petitioner to reinstate the respondent workman in service on or before returnable date. Meanwhile, award is stayed qua backwages till 06.10.2006. Thereafter, on 05.02.2007, following order is passed by this Court (Coram : R.M. Doshit, J.).
“Heard the learned Advocate.
Rule. Mrs. Pahwa waives service of rule.
Pending this petition, there shall be interim stay in terms of Para 10(C).
R & P be called for.”
4. This order has been passed after about five months from the date of first order 08.09.2006. In pursuance of the order passed by this Court on 08.09.2006, the original petitioner has reinstated the workmen in service on 14.01.2007.
5. Apart from this controversy and inaction on the part of the petitioner, the facts remain that stay is operating against the reinstatement and workman’s service was again terminated by the petitioner. Therefore, present Civil Application is filed by present application-original respondent with a prayer to grant the benefit under Section 17-B of the Industrial Disputes Act, 1947. A specific averments made in Para 7 of this application which is quoted as under :
“7. It is submitted that as per the provisions of Section 17-B of the Industrial Disputes Act, the applicant is entitled for the benefits under the provisions of Section 17-B of Industrial Disputes Act. The applicant submits that the applicant has filed an affidavit to the effect that the present applicant is not gainfully employed from the date of termination till date. The applicant submits that despite his best efforts, the applicant could not get gainful employment from the date of termination till date. Annexed hereto and marked as Annexure ‘E’ to this application is the copy of the affidavit filed by the applicant to the effect that he is not gainfully employed”.
6. The averments made in this application are objected by the original petitioner by filing the affidavit-in-reply. It is necessary to note one important fact that Civil Application No. 8968 of 2007 filed by present applicant before this Court after the order of co-ordinate Bench dated 05.02.2007. This Court has directed the petitioner to reinstate the workman on or before 31.07.2007 by order dated 16.07.2007, against which, the Letters Patent Appeal is filed by original petitioner and stay was obtained. The order dated 16.07.2007 passed in Civil Application No. 8968 of 2007 is quoted as under :
“1. Heard learned Advocate Ms. Vinita Vinayak for M/s. Thakkar Associates for the applicant and learned Advocate Mr. S.N. Sinha for respondent.
2. In main SCA No. 19234 of 2006, respondent-original petitioner has challenged the award passed by Labour Court dated 13.04.2006 in Reference No. 459/1987, whereby the Labour Court has directed to original petitioner to reinstate the workman with 75% back wages with continuity and with consequential benefits.
3. This Court has issued notice on 08.09.2006 and directed the petitioner to reinstate the respondent workman in service on or before returnable date and award is stayed qua back wages till 06.10.2006. Thereafter, the matter was listed before coordinate Bench of this Court (Coram : Miss Justice R.M. Doshit) for further hearing on 05.02.2007 where following order
