LPA/809/2006 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 809 of 2006 In SPECIAL CIVIL APPLICATION No. 10344 of 1999 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT & HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to civil judge ? ========================================================= JASHWANTSINH KALUSINH CHAUHAN - Appellant(s) Versus GSRTC - Respondent(s) ========================================================= Appearance : MR GK RATHOD for MR MUKESH H RATHOD for Appellant MR HARDIK C RAWAL for Respondent ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER 24th January, 2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) Heard the learned advocates. LPA/809/2006 2/7 JUDGMENT With the consent of the learned advocates, the Appeal is heard and disposed of today. This Appeal preferred under Clause 15 of the Letters Patent arises from the judgment and order 6th July, 2005 passed by the learned Single Judge in above Special Civil Application No. 10344 of 1999. The appellant is the workman. The respondent is the Gujarat State Road Transport Corporation, the employer [hereinafter referred to as, “the Corporation”]. At the time of hearing of the Appeal on 27th September, 2006, before the Bench [Coram : Anil R. Dave, J., as he then was & Ms. Justice H.N Devani], learned advocate Mr. Rathod appearing for the appellant had made a specific statement that, “..he is pressing the Appeal only in so far as the question of payment under Section 17-B of the Industrial Disputes Act, 1947 is concerned.” Mr. Rathod has appeared for the workman. He has submitted that by the judgment and award dated 31st May, 1999 passed by the Labour Court, Ahmedabad in Reference [LCA] No. 820 of 1998, the punishment of LPA/809/2006 3/7 JUDGMENT dismissal from service imposed upon the workman was set-aside. Instead, the workman was visited with punishment of withholding of three increments. The Corporation was directed to reinstate the workman in service with the benefit of continuity in service. Feeling aggrieved by the said judgment and award, the Corporation had preferred above Special Civil Application No. 10344 of 1999 before this Court. The said petition had been admitted to final hearing. Pending the final hearing, implementation and execution of the impugned Award was stayed. In view of the stay granted by the Hon'ble Court, the appellant-workman took out Civil Application No. 6291 of 2001 for grant of benefit under Section 17-B of the Industrial Disputes Act, 1947 [hereinafter referred to as, “the Act”]. Alongwith the said application, the workman also filed affidavit stating that since the date of his dismissal from service he had remained unemployed. At the time the said Civil Application came up for hearing before the learned Single Judge, both the learned advocates agreed for final hearing of the main petition. Accordingly, the main petition and the Civil Application were ordered LPA/809/2006 4/7 JUDGMENT to be posted for hearing on 26th July, 2001. On 26th July, 2001 neither the writ petition nor the Civil Application was heard. In the meantime, the matter was twice posted before Lok Adalat. Thus, the hearing of the main petition was delayed. The main petition ultimately was heard and decided by impugned judgment and order dated 6th July, 2005. Though the workman pressed for benefit under Section 17-B of the Act, the learned Single Judge was of the opinion that by agreeing to hearing of the main petition, the workman had given up his right to receive last drawn wages under Section 17B of the Act. Mr. Rathod has submitted that the learned Single Judge has erred in holding that the workman had given up his right to last drawn wages under Section 17B of the Act. He has submitted that Section 17B of the Act confers a right upon the workman in favour of whom the order of reinstatement is made and such order is stayed by the higher forum. Neither the workman had specifically agreed to give up his claim under Section 17B of the Act nor was there a tacit understanding. He has submitted that in view of the statement made on oath, which has not been countered LPA/809/2006 5/7 JUDGMENT by the Corporation, pending the writ petition the workman was entitled to the wages last drawn by him. Mr. Raval has contested the Appeal. He has submitted that it was the workman who did not conduct the matter before the learned Single Judge for more than five years. It was at his instance that the matter was referred to Lok Adalat. The fact that the workman did not press for hearing of the said application in itself indicates that the workman was gainfully employed. He, therefore, is not entitled to the benefit under Section 17B of the Act pending the writ petition. In support of his submission Mr. Raval has relied upon the judgment of this Court in the matter of Navin Fluorine Industries vs. B.M Shah [2003 (3) GLH 189]. In the above matter, the learned Single Judge rejected the request of the workman not to hear the writ petition against the award of the Labour Court until the application for benefit under section 17B of the Act was heard and decided. We do agree with the learned Single Judge that no workman has a right to avoid hearing of the main writ petition under the guise that the application made under LPA/809/2006 6/7 JUDGMENT Section 17B of the Act is not heard or finally decided. However, the said judgment shall have no applicability to the facts of the present case. In the present case, the claim is limited for grant of benefit under Section 17B of the Act from the date the application was made till the main petition was heard and finally decided. We are unable to accept the contention raised by Mr. Raval. There is nothing on record to suggest that the workman had given up his right to claim last drawn wages pending the writ petition. In absence of express statement made on behalf of the workman and the fact that the Civil Application was kept pending all along, we are of the opinion that the workman did not forgo his right to claim benefit under Section 17B of the Act. Nor did the workman forfeit such right merely because the matter was adjourned time and again. Such a claim cannot be rejected on the ground that the hearing of the Civil Application was not pressed at the relevant time. In above view of the matter, the Appeal is allowed to the extent that the appellant workman will be entitled to wages last drawn by him from the date LPA/809/2006 7/7 JUDGMENT he made affidavit of his unemployment before this Court till 6th July, 2005, the date of the impugned judgment. Such wages shall be calculated and paid to the workman on or before 30th April, 2008. In the event, the respondent-Corporation fails to pay wages as directed hereinabove, the Corporation shall be liable to pay interest on the amount of such wages @ 6% per annum from the date of this order till the date of payment. Challenge to the rest of the order of the learned Single Judge stands rejected as not pressed. In view of the above order, Civil Application is disposed of. {Miss R.M Doshit, J.} {K.M Thaker, J.} Prakash*