SCA/5344/2008 1/31 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5344 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ========================================================= 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 the civil judge ? ========================================================= DASRATHSINH LALUBHA ZALA - Petitioner(s) Versus GUJARAT ELECTRICITY BOARD - Respondent(s) ========================================================= Appearance : MS FARHANA Y MANSURI for Petitioner(s) : 1,MR LIYAKAT I MEHTA for Petitioner(s) : 1, MR SN SINHA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 02/05/2008 ORAL JUDGMENT 1. Rule. Service of Rule is waived by the learned Advocate Mr. Sinha on behalf of the respondent herein. In the peculiar facts and circumstances SCA/5344/2008 2/31 JUDGMENT of the case and with consent of both the learned Advocates, matter is taken up for final hearing today itself. 2. Heard learned Advocate Ms. Farhana Y. Mansuri for the petitioner and Mr. SN Sinha, learned Advocate for the respondent Board. 3. This case is having a history how the poor workman is being harassed by Public Authority taking shelter of legal machinery, being a glaring example, therefore, facts of the present case are considered as under: 4. The petitioner workman was working with the respondent Board. In the year 1990, his services were terminated by the respondent Board and, therefore, he raised an industrial dispute which was referred to the labour court by the appropriate Government. Reference No. 258 of 1990 was decided by the labour court on 1st June, 2001. Labour Court granted reinstatement with 40% back wages for the intervening period. Said award made by the labour court was challenged by the Gujarat Electricity Board by filing Special Civil Application NO. 1327 of 2003 wherein this Court has, by order dated 30.4.2003, rejected the said petition. Workman is out of job since 1990. Order of this Court dated 30.4.2003 in SCA NO. 1327 of 2003 is reproduced as under: “ Heard learned advocate Mr. Munshaw for the petitioner. In this petition, the petitioner has challenged the award made by the labour court concerned in reference no. 258 of 1990 dated 1st June, 2001 wherein the labour court has SCA/5344/2008 3/31 JUDGMENT granted reinstatement with 40 per cent of the back wages for the intervening period. After considering the record, the labour court has come to the conclusion that the workman has completed continuous service of 240 days and since the order of termination has been passed without complying with the provisions of section 25F of the ID Act, 1947, the order of termination would become void ab initio. The labour court has also considered the record of the workman and has not granted full back wages but has granted only 40 per cent of the back wages for the intervening period. The issue was discussed in para 10 to 14 of the award. The labour court has come to the conclusion that from November, 1987 to September, 1988, within 11 months,the workman has completed more than 254 days. It is not in dispute that the petitioner has not complied with section 25F of the ID Act, 1947 before terminating the services of the respondent workman and, therefore, I am of the view that the labour court was right in granting relief in favour of the respondent workman. The labour court was right in granting only 40 per cent back wages for the intervening period. The petitioner has not been able to prove before the labour court that the respondent has been gainfully employed during the intervening period. I am therefore of the opinion that the labour court has not committed any error while passing such an award. Mr. Munshaw has not been able to point out any procedural irregularity or jurisdictional error committed by the labour court. Therefore, there is no substance in this petition and the award in question does not call for any interference in exercise of the powers under Article 226/227 of the Constitution of India. In the result, this petition is dismissed.” 5. Petitioner has succeeded in two proceedings, one before the labour court and another before the learned Single Judge of this Court and yet, the petitioner has remained without reinstatement or SCA/5344/2008 4/31 JUDGMENT wages under section 17B of the ID Act, 1947 and is also not able to receive single pie though proceedings are pending before the Division Bench of this Court and yet the respondent is denying benefit of sec. 17B of the ID Act, 1947 under the pretext that he has issued job offer to the petitioner and, therefore, petitioner is not entitled for benefit of sec. 17B of the ID Act, 1947. When the proceedings against the award of reinstatement are pending before the High Court, High Court has no jurisdiction to deny for the benefit of section 17B of the ID Act, 1947 to the concerned workman. When the award of reinstatement of the workman is under challenge before the Higher Forum, the Higher Forum has no option but to grant such benefit under sec.17B of the ID Act if the employer is not able to point out and prove that the workman is not entitled for such benefit as he is gainfully employed in any establishment and has been receiving adequate remuneration. In State of Gujarat, condition of workers is really pitiable and yet, nobody is looking for the cause of such helpless poor workmen because from them, nothing has to be received by them. Employer can engage advocate and senior advocate but workman would not be able to afford such luxury. 6. Respondent Board is not implementing the a ward in question though petition filed by the petitioner board was dismissed by this court on SCA/5344/2008 5/31 JUDGMENT 30.4.2003 and, therefore, in between, Special Civil Application No. 2332 of 2007 was filed by the present petitioner workman with a prayer to direct the Board to implement the award in his favour as the petition filed by the board has already been dismissed by this court. Thereafter, Letters Patent Appeal No. 1957 of 2007 was filed against the order of this Court in SCA No. 1327 of 2003 with a Civil Application NO. 13162 of 2007. On 17.10.2007, the Division Bench of this Court passed the following order in LPA NO. 1957 of 2007: “ Heard Mr.N.D.Nanavati, learned Senior Advocate for Mr.S.N.Sinha, learned advocate for the appellant, and Ms.F.Y.Mansuri, learned advocate for the respondent. Learned advocate Mr.Nanavati has relied on (1) Indian Drugs & Pharmaceutical Ltd. (2007)1 SCC 408, and (2) Gangadhar Pillai v. Siemens Ltd. (2007)1 SCC 533. Prima facie, it appears that undisputedly the respondent was not recruited after following due procedure on any permanent post. Whatever right he can be said to have acquired is only on account of working for 240 days in a calendar year. In view of the above two judgments, appeal is ADMITTED. Civil Application No. 13162/07 Rule. Ms. F.Y.Mansuri, learned advocate, waives service of notice of rule on behalf of the opponent. Heard the learned advocates for the parties. Interim relief in terms of Para-4(B) on condition that the applicant-appellant shall offer work to the opponent as and when regularly appointed watchmen are not available to perform duty, and shall pay wages therefor to the opponent. SCA/5344/2008 6/31 JUDGMENT Rule made absolute. No costs.” 7. Thereafter, an application being Civil Application No. 14860 of 2007 was moved by the workman Dashrathsinh L. Jhala before the Division Bench of this Court in the aforesaid Letters Patent Appeal No. 1957 of 2007 wherein the Division Bench of this Court passed following order on 13.12.2007: “ Learned Advocate for the applicant seeks permission to withdraw this application, reserving liberty to the applicant to assert his right before the appropriate authority. Permission as prayed for is granted. Application stands disposed of as withdrawn.” 8. Thus, the aforesaid civil application no. 14860 of 2007 filed by the workman was withdrawn reserving liberty to the workman to assert his right before the appropriate authority. 9. Thereafter, the workman approached this court by filing SCA NO. 5344 of 2008 with a prayer that he is in a position of hand to mouth, not able to maintain himself as he is out of job since 1990 and therefore, prayer has been made by him to direct the respondent board to pay to the petitioner wages under section 17B of the ID Act, 1947and also direct the respondent board to pay accrued amount of section 17B of the ID Act, 1947 to the petitioner. Against this petition, after being served with the notice issued by this court, respondent board has filed affidavit in reply, para 1 to 7 thereof, being material, SCA/5344/2008 7/31 JUDGMENT are reproduced as under: “1. That I have gone through the memo and as I am conversant with the facts and as I am competent to file reply, I am filing this reply for the purpose of opposing the admission and the grant of any relief to the petitioner u/s.17B of the ID Act, 1947. I state that the averments and contentions, which are not specifically admitted by me, are categorically denied hereby. 2. At the outset, I humbly raise my objection tot he title of the petition as it is factually incorrect and misleading. Inf act, there is no organization by the name of Gujarat Electricity Board now and there is no Dy General Manager, North Zone at Mehsana' I humbly submit that this petition may be dismissed for this ground alone. All the same, I, as the Ex. Engineer of the successor Company of the erstwhile GEB, offer my remarks on this petition as under: 3. With regard to para 1, I have no remark to offer as it is a formal para. 4. With regard to para nos. 2 to 6, I offer the remark that they are statements of fact and call for no comment from me. 5. With regard to para 7, I humbly state that the petitioner has not come with clean hands before the Hon'ble Court and therefore the petitioner deserves no equity and no sympathy. With due respect to the petitioner, I submit that he has suppressed the relief already granted to him by the Hon'ble Division Bench, a copy of which is annexed hereto and is marked as Annexure R- 1. With regard to para 8, I humbly submit that the petitioner has already been offered job in leave vacancy in compliance with the said orders of the Hon'ble D.B. A copy of the said job offer to the petitioner is annexed hereto and is marked as Annexure R- 2. I very humbly and respectfully say that SCA/5344/2008 8/31 JUDGMENT submit that no one has a right to enjoy two wages simultaneously – employment wage and idle wage – and, therefore, there is no case for consideration of this petition. 7. With regard to para2 9 to 13, I humbly state that they are formal paras, calling for no remarks from me. “ 10.Today, learned Advocate Mr. SN Sinha for the respondent after reading the affidavit in reply filed by the respondent, raised technical contention that the respondent State Authority now is a company. He also contended that because of the order of the Division Bench of this Court dated 17.10.2007, where interim relief in terms of para 4(B) of the civil application has been granted and which is continuing and during that period, the respondent Board shall have to offer work to the workman petitioner as and when regularly appointed watchmen are not available to perform the duty and shall pay the wages therefor to the petitioner workman. He also relied upon the order of respondent dated 25.4.2008 page 13 annexure R-2 whereby the workman Dashrathsinh Lalubha Jhala has been informed that the respondent is prepared to give work of watchman on daily wage basis. Regular watchman of the respondent is having weekly off on every Wednesday and, therefore, petitioner workman has been informed to perform said duty on every Wednesday. Thus, in a month, workman is entitled to have a work for a period of four days on daily wage basis though he has to SCA/5344/2008 9/31 JUDGMENT maintain the family for 30 days. These facts have been narrated by this court just to point out and highlight to the society to know how the worker who is out of job since 1990 is being harassed by the public body under the pretext of legal fight for more than 17 years inspite of success before the two forums namely labour court and the learned Single Judge of this Court and though award of reinstatement has been confirmed by the learned Single Judge of this Court in 2003 by judgment dated 30.4.2003. According to the learned Advocate Mr. SN Sinha for the respondent, the papers of Letters Patent Appeal were misplaced and, therefore, there was four years of delay and after four years, Division Bench of this Court granted interim relief in terms of para 4(B) on condition that the respondent shall offer work to the petitioner as and when regularly appointed watchmen are not available to perform duty and shall pay wages therefor to the workman. Respondent, in compliance of the said condition incorporated by the Division Bench of this Court, issued order annexure R-2 page 13 to the reply to this petition whereby the workman has been asked to perform duty of watchman on daily wage basis on every Wednesday when regularly appointed watchman is enjoying weekly off, meaning thereby, petitioner will get work for only four days of each month and will get wages accordingly for four days in a month. It is SCA/5344/2008 10/31 JUDGMENT necessary to note that the deponent of the affidavit in reply filed on behalf of the respondent herein namely Bharatkumar M. Patel who is Executive Engineer of the present respondent has not pointed out positive case that the workman is employed in any establishment or gainfully employed and receiving adequate remuneration and, therefore, not entitled to claim wages under section 17B of the ID Act, 1947. Such positive case has not been put forward by the respondent before this court in his affidavit in reply filed before this court. Deponent of the affidavit in reply filed on behalf of the present respondent has also not pointed out as to how and why the workman is not entitled for the wages under section 17B of the ID Act, 1947 from the date of the award till the date of the orders passed by the Division Bench of this Court in Letters Patent Proceedings. 11.Averments made by the petitioner in para 8 and 9 of the memo of petition, being material, are reproduced as under: “8. The petitioner states and submits that the petitioner is a poor person and in hand to mouth condition since long time and due to pendency of the above said cases, the petitioner is not engaged anywhere for the purpose of employment. It is very difficult to survive in these hard pressed days of inflation, dearness and unemployment, where the index of prices is going high and high day by day. The petitioner is also facing tremendous SCA/5344/2008 11/31 JUDGMENT crisis since the initiation of the proceedings. 9.The petitioner states and submits that at present the petitioner is not gainfully employed anywhere. The petitioner has also made affidavit to this effect which is annexed hereto and marked as Annexure B to this petition.” 12.While dealing with the averments made by the petitioner in para 8 of the memo of petition, deponent of the affidavit in reply filed on behalf of the respondent has submitted in para 6 of the reply as quoted above that the petitioner has already been offered job in leave vacancy in compliance with the orders of the Division Bench of this Court. Now, if the job offer as per page 13 annexure R-2 is considered, then, it appears that the petitioner workman has been asked to work on every Wednesday on daily wage basis as watchman in place of regularly appointed watchman who is enjoying weekly off on Wednesday.The deponent of the affidavit in reply filed on behalf of the respondent has also not stated as to how and why the workman is not entitled for such benefit under sec. 17B of the ID Act, 1947 for the period from the date of the award till the date of the orders of the Division Bench of this Court dated 17.10.2007 but has evasively stated that no one has a right to enjoy two wages simultaneously – employment wage and idle wages. In light of the averments made by the present petitioner in para 8 of the petition, such averments made by the deponent in SCA/5344/2008 12/31 JUDGMENT his reply affidavit could be considered as vague as vagueness could be. 13.As regards para 9 of the petition wherein the petitioner has averred that he is not gainfully employed anywhere, the deponent of the affidavit in reply filed on behalf of the respondent has submitted that they are formal calling for no remarks. Thus, the deponent of the affidavit in reply filed on behalf of the respondent is considering such averment as formal averments and, therefore, not submitting any remark as regards averment of unemployment of the petitioner. 14.Therefore, considering the averments made by the petitioner in para 8 and 9 of the petitioner wherein he has specifically made it clear that he is a poor person and in hand to mouth condition since long time and due to pendency of the above said cases, he is not engaged anywhere for the purpose of employment and that it is very difficult for him to survive in these hard pressed days of inflation, dearness and unemployment, where the index of prices is going high and high day by day and that he is also facing tremendous crisis since the initiation of the proceedings and is unemployed and not gainfully employed anywhere, and also considering the averments made by the deponent in affidavit in reply para 6 and 7 while dealing with para 8 and 9 of the memo of petition, averments made by the petitioner in para 8 and 9 SCA/5344/2008 13/31 JUDGMENT have remained uncontroverted since the respondent has not put forward positive case about the gainful employment of the petitioner workman for the period from the date of the award till the date of the orders passed by the Division Bench of this Court. Interim relief against the award of reinstatement dated 1st June, 2001 has been granted for the first time by the Division Bench of this Court on 17th October, 2007 and thereafter, petitioner had approached the Division Bench of this Court by filing Civil Application No. 14860 of 2007wherein the petitioner was permitted to withdraw the said civil application with a liberty in favour of the workman to assert his right before the appropriate authority. According to the petitioner, this court is appropriate authority for asserting his right and benefit under section 17B of the ID Act, 1947 and, therefore, the petitioner has approached this Court for asserting his right for benefit of section 17B of the ID Act, 1947. No doubt, Letters Patent Appeal arising from the order of the learned Single Judge of this Court confirming the award of reinstatement are pending before the Division Bench of this Court and the offer of job made by the respondent to the petitioner in compliance of the interim order of the Division Bench of this Court is limited employment of four days in a month, on every Wednesday when regularly appointed SCA/5344/2008 14/31 JUDGMENT watchman is proceeding to enjoy his weekly off. Whether it can be considered to be the compliance of section 17B of the ID Act, 1947 or not and whether such job could be considered to be gainful employment or not and whether the amount earned from such four days work in a month could be considered as adequate remuneration or not and whether for rest of the days of month, workman is entitled for the benefit of section 17B of the ID Act, 1947 or not and whether it could be considered as compliance of the interim directions of the Division Bench of this Court or not. All these are the question required to be considered by the Court while considering the matter at issue but since the matter is at large before the Division Bench of this Court, this Court is not entering into those aspects of the matter while keeping in view the fact that the Division Bench of this Court has granted stay against the reinstatement subject to condition as referred to above on 17.10.2007. 15.In view of these facts, when the petition has been filed before this Court by the poor workman, in view of the pendency of the LPA Proceedings before the Division Bench of this Court, this Court is having jurisdiction to examine the whether any relief could be given to the workman for a limited period from the date of the award till the date on which Division Bench of this Court granted stay against the SCA/5344/2008 15/31 JUDGMENT award in question. Even otherwise, the respondent has not raised any objection about the maintainability of the present petition as can be seen from the reply of the respondent and the submissions made by the learned Advocate Mr. Sinha before this Court. Therefore, in view of the peculiar facts and circumstances of this case, this court is having jurisdiction to examine this limited aspect and to pass appropriate orders under Article 226of the Constitution of India. 16.Therefore, considering the fact that the workman is out of job since 1990 and is not able to get job though labour court has made award dated 1st June, 2001 in his favour and that award has been confirmed by the learned Single Judge of this Court on 30.4.2003 in SCA NO. 1327 of 2003, and thereafter, after a period of four years, Division Bench of this Court passed interim orders staying operation of the award subject to the condition incorporated in the order of stay dated 17.10.2007 by the Division Bench of this Court and, therefore, he is not able to get the benefit of section 17B of the ID Act, 1947 and is also not able to get full employment in service for enabling him to maintain his family and, therefore, whether, such situation created by the respondent Board at the instance of legal proceedings is permissible or not. According to my opinion, such type of legal battle between mighty Board SCA/5344/2008 16/31 JUDGMENT and poor workman is not permissible and the respondent Board cannot be permitted to deny such benefit under section 17B of the ID Act, 1947 on one hand and on the other hand deny full employment to the workman and the workman means the petitioner is entitled for the last drawn wages under section 17B of the ID Act, 1947 for the period from the date of the award 1st June, 2001 till the date on which the Division Bench of this Court granted stay against the operation of the award. On one hand, respondent board is not implementing the award in question and on the other, respondent board is also not complying with the mandatory provisions of section 17B of the ID Act, 1947 as if it has complied with the interim direction of the Division Bench in letter and spirit while considering the award of reinstatement as a mere piece of paper and a paper decree and nothing else. Such an approach on the part of the respondent cannot be tolerated. According