LPA/1372/2006 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1372 of 2006 In CIVIL APPLICATION - FOR DIRECTION No. 10260 of 2006 In SPECIAL CIVIL APPLICATION No. 11868 of 2003 With CIVIL APPLICATION No. 12205 of 2006 With CIVIL APPLICATION No. 13802 of 2007 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 the civil judge ? ========================================================= GANGA CROPS SAFE PVT. LTD - Appellant(s) Versus BECHARBHAI MAGANBHAI PATEL - Respondent(s) ========================================================= Appearance : MR DIPAK R DAVE for Appellant(s) : 1, MR SHAILESH C SHARMA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER LPA/1372/2006 2/7 JUDGMENT Date : 11/03/2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) With the consent of the learned advocates, this Appeal is heard and finally decided today. 2. The present Appeal, preferred under Clause 15 of the Letters Patent, arises from the order dated 4th September, 2006 made by the learned Single Judge, pending the above Special Civil Application No. 11868 of 2003, insofar as the appellant employer has been directed “to pay full monthly wages last drawn to the respondent – workman with effect from 31st January 2002 to 31st August 2006....” 3. The above order has been modified on 1st November, 2006 by order made on Civil Application No. 12205 of 2006 (Coram: Mr. A.R. Dave, J. as he then was and Ms. H.N. Devani, J.) to the effect LPA/1372/2006 3/7 JUDGMENT that the respondent shall be paid wages in accordance with the provisions of Section 17-B of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”) with effect from 1st August, 2006. 4. It is not in dispute that the Labour Court, Ahmedabad has, by its award dated 31st January, 2002 made in Reference (LCA) No. 221 of 1991 directed the appellant to reinstate the respondent workman in service. Implementation of the said order to reinstate the workman in service has been stayed pending the above Special Civil Application No. 11868 of 2003. It is also not in dispute that in view of the stay order the employer is liable to pay the wages last drawn by the workman. The submission is that liability of the employer under Section 17-B of the Act arises in case the workman is not gainfully employed. The assertion by the workman that he is not gainfully employed is, therefore, a prerequisite for invoking Section 17-B of the LPA/1372/2006 4/7 JUDGMENT Act. In the present case, such assertion was made by the respondent workman in the affidavit made by him on 14th August, 2006. The appellant's liability to pay the wages last drawn by the workman would arise from 14th August, 2006 and not before that. In absence of such assertion made by the workman, the learned Single Judge has erred in directing the appellant to pay to the workman the wages last drawn by him from 31st January, 2002. 5. Pending this Appeal, the respondent workman has taken out the above Civil Application No. 13802 of 2007. It is the complaint of the respondent workman that in defiance of the above referred order dated 1st November, 2006 the appellant has stopped paying the wages to the respondent workman for last six months. Mr. Dave has admitted the fact that for last six months the respondent workman has not been paid the wages under Section 17-B of the Act. He has, however, explained that the wages under Section LPA/1372/2006 5/7 JUDGMENT 17-B of the Act is in the nature of subsistence allowance. It is, therefore, necessary that the workman personally comes and collects such wages. He has submitted that the workman has been informed time and again to collect such wages from the office of the appellant. But, the workman has not collected the wages. He has submitted that thus far the appellant used to pay such wages to the workman by sending him a cheque for the like amount every month through post. The respondent, however, does not issue receipt for such amount. The appellant, for the purpose of accounting, needs to have a receipt for the amount paid to the respondent. 6. We do agree that the appellant is liable to pay the wages last drawn by the respondent workman from the date the respondent asserted that he was not gainfully employed and not from the date of the award as directed by the learned Single Judge. LPA/1372/2006 6/7 JUDGMENT 7. In above view of the matter, the Appeal is allowed. The impugned order dated 4th September, 2006 made by the learned Single Judge is modified to the effect that the appellant will pay the wages last drawn to the respondent workman in compliance with Section 17-B of the Act with effect from 1st August, 2006. It is further directed that the arrears of such wages upto the date be paid to the respondent workman within two weeks from today. Hereafter, such wages shall be paid regularly every month by cheque. The appellant will not insist on respondent's collecting the cheque in person. The cheque may be sent to the workman by post as was done in past. The workman will send a stamped receipt for the amount received by him regularly every month within 5 days from the date of the receipt of the cheque. 8. In view of the above order, the Civil Applications stand disposed of. The parties will bear their own cost. LPA/1372/2006 7/7 JUDGMENT [ Ms. R.M. Doshit, J.] rmr.* [ K.M. Thaker, J. ]