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Judgment
Honourable Mr. Justice S.R. Brahmbhatt
Civil Application No. 5310 of 2010 with Civil Application No. 5760 of 2010 were requested to be heard together by the counsel for the employer as this Court (Coram: M.R. Shah, J) vide order dated 13/10/2010 has so observed as under:
Present application has been preferred by the applicants for getting the wages u/s 17B of the Industrial Disputes Act 1947, as per the order dated 20.04.2006 passed by this Court in main petition being Special Civil Application No. 134/2006 and the subsequent order passed by this Court dated 16.03.2009 passed in Civil Application.
It is reported by Shri Kunan Naik, learned advocate appearing on behalf of the respondent that respondent Company has already preferred Civil Application No. 5760/2010 in Special Civil Application No. 134/2006 to suitably modify the order dated 20.04.2006 passed in Special Civil Application No. 134/2006, which is adjourned to 25.10.2010. In view of the above and so as to avoid any conflicting orders and more particularly when the present application is for getting wages u/s 17B of the Industrial Disputes Act 1947, as per the order dated 20.04.2006 which is sought to be modified in Civil Application No. 5760/2010, which is before another learned Single Judge, Registry is directed to notify the present application along with Civil Application No. 5760/2010 before the same Bench after obtaining appropriate order from Hon''ble The Chief Justice.
In fact there are number of petitions, applications and counter petitions along with Special Civil Application No. 134/2006 and that entire group is pending. However learned Counsel for the applicant specifically requested the Court to take-up the civil application no. 5310/2010 and pass appropriate orders as the statutory provision had remained to be complied with. Accordingly on 19/12/2011 this Court (Coram: S.R. Brahmbhatt, J) has passed the following order.
Both the counsels have agreed that this matter is certainly not one of the group matters and it requires to be separated.
Office is directed to place this matter before appropriate Bench of this Court as per the present roster.
Accordingly these two matters have been treated as separate matters not falling and forming part of the group.
The main matter i.e. Special Civil Application No. 134/2006 was filed by the employer inter alia challenging the interim award & order dated 6/12/2005 passed by the Industrial Tribunal in Reference (I.T.) No. 15/2005 inter alia directing reinstatement of 7 workmen containing the names in the award itself.
This Court (Coram: K.A. Puj, J (as he then was)) vide order dated 20/2/2006 granted some interim order qua reinstatement but did not grant any stay qua prohibition against alienating property of the company.
The workmen in whose favour reinstatement order of Industrial Tribunal was inuring and which has been stayed by this Court, therefore were required to be paid last drawn wages in terms of provisions of Section 17B I.D. Act, 1947. There was non-compliance with this statutory provision and hence order came to be passed on 20/4/2006 by this Court (Coram: H.K. Rathod, J {as he then was}), wherein it was ordered that the workmen whose reinstatement is stayed by the Court shall be paid 17-B wages i.e. last drawn wages in terms of provisions of I.D. Act. Said order remains to be complied with as claimed by learned Counsel for the workmen. Hence workmen were constrained to file civil application no. 2734 of 2009 wherein this Court (Coram: M.R. Shah, J) on 16/3/2009 passed the following order:
The grievance voiced in the present application is that the directions issued by this Court vide order dtd. 20/4/2006 in Special Civil Application No. 134 of 2006 has not been complied with.
Nothing is on record that the directions issued by this Court vide order dtd. 20/4/2006 in Special Civil Application No. 134 of 2006 has been complied with.
While admitting the main Special Civil Application No. 134 of 2006 and confirming the interim relief in para 4, the learned Single Judge has issued the following directions in para 4 as under:-
In view of the above interim order passed by this Court maintaining the same interim order, it is directed to the petitioner to pay last drawn wage inclusive of maintenance allowance to the workmen Shri M.K. Kagji, Shri N.J. Zhariwala, Shri Jayendrabhai M. Shah, Shri N.D. Panjangira, Shri Jitendra A. Patel, Shri Pravinbhai Gangadwala and Shri Rajnikant Karsanbhai from the date of award dated 6th December, 2005 till 30th April, 2006 within a period of one month from the date of receiving the copy of this order. It is further directed to the petitioner to pay regularly continuous last drawn wages as required u/s 17B of the I.D. Act, 1947 to the concerned workmen, as referred above, till the main SCA is finally decided by this Court.
Under the circumstances, it appears that the interim relief has been confirmed by the learned Single Judge on the aforesaid condition and therefore, the petitioners of Special Civil Application No. 134 of 2006, are required to be directed to act as per the directions issued by the learned Single Judge in its order dtd. 20/4/2006 in Special Civil Application No. 134 of 2006.
In view of the above, present application is allowed directing the respondent Nos. 1 to 3 herein to comply with the order dtd. 20/4/2006 in Special Civil Application No. 134 of 2006 within two weeks from today failing which the interim order passed by the learned Single Judge dtd. 20/4/2006 in Special Civil Application No. 134 of 2006 be treated as vacated as the interim relief has been confirmed on the aforesaid condition. Rule is made absolute accordingly.
The arrears was thus paid, but again there was non compliance and therefore workmen were constrained to file Civil Application No. 10065 of 2009, wherein this Court passed following order on 15/9/2009 (Coram: S.R. Brahmbhatt, J) :
Ms. Sejal Bhatt for M/s. Trivedi & Gupta, learned advocate for opponent No. 1 submits that the arrears of wages u/s 17B of the Industrial Disputes Act, 1947 shall be paid within 10 days from today.
In view of this, Civil Application is allowed. There shall be no order as to costs.
Thereafter again there was non compliance with the mandatory statutory provision of 17B of I.D. Act, workmen were constrained to prefer present application being Civil Application No. 5310 of 2010 in Civil Application No. 10065 of 2009 in Civil Application No. 2734 of 2009 which is pending and during pendency thereof the employer also preferred Civil Application No. 5760 of 2010 with following prayers:-
In the premises aforesaid, the applicants most humbly pray that:
(A) YOUR LORDSHIPS may be pleased to admit and allow the present application;
(B) YOUR LORDSHIPS may be pleased to suitably modify order dated 20.4.2006 passed by this Hon''ble Court and direct the opponent Nos. 3 to 6 to report for work and in case the opponent Nos. 3 to 6 do not report for work to relieve the applicant No. 1 Company from making payment of wages u/s 17B of the Industrial Disputes Act 19476;
(C) YOUR LORDSHIPS may be pleased to grant any other and further relief/s as may be deemed just and proper in the interest of justice and fitness of things.
Thus the employer contended that as the work is available at Mumbai same was offered to the workmen and they were invited to join at Mumbai and therefore employer be exempted from further compliance with section 17B of I.D. Act. Workmen resisted these prayers by filing affidavit which is at page-32 onwards and submitted that the company does not have any plant or factory in Mumbai and in Mumbai the company has an office wherein the workmen in whose favour the order of reinstatement is made and is stayed can not provide work so as to satisfy the requirement of reinstatement as such.
learned Counsel for the employer contended that the workmen have no right to decline the offer of the company to provide them work at Mumbai with wages and company was always ready & willing to provide them suitable accommodation and conveyance allowance to commute from the place of accommodation to that of the office where they were offered work. Therefore when the employer''s order contain the condition namely clause No. 7 workmen were required to report at Mumbai. Clause no. 7 of order reads thus:-
Your services are in the discretion of the Company liable to be transferred from one Department to another and/or to any of our Associate, Sister, Merged or Amalgamated concern anywhere in India without payment of any extra salary.
In light of this condition, when the workmen are offered work at Mumbai, without prejudice to the contention of their right to continue the challenge to the writ petition, the workmen by declining the same have no right to insist for payment 17B i.e. last drawn wages. It is further contended by learned Counsel for the company that learned Counsel for the workmen is not correct in contending that the workmen are without work as in fact they are working in different establishments.
learned Counsel for the employer further contended that there are evidences available to show that workmen in fact have been gainfully employed but unfortunately on account of non-availability of this documentary evidences right now with the counsel same could not be produced and in case if the Court is inclined to pass any order in favour of the workmen, then, right of the employer to produce said evidences later on may be kept open. Shri Bukhari, learned Counsel for the workmen contended that Civil Application No. 5760 of 2010 is not maintainable in eye of law as the same amounts to permitting the employer to take short cut and scuttle the entire scheme of I.D. Act. The fact remains to be noted that the entire controversy involved in main petition being Special Civil Application No. 134 of 2006 is an order of reinstatement and prohibitory orders from alienating property. When the reinstatement itself is stayed by this Court then provision of section 17B comes into play automatically once workmen files affidavit of not being employed gainfully In such a situation when the company is not capable of providing work which was performed by the workmen at Surat as per their service conditions and the company now wants to alter their service conditions on the ground of alternate work available which cannot be said to be valid, as otherwise also it amounts to the contract of service condition which is diametrically opposite to public policy these prayers made in civil application no. 5760 of 2010 are required to be rejected outrightly.
This Court has heard learned Counsel for the parties and perused the documents accompanying with these two civil applications. This Court is of the considered view that the prayers made in Civil Application No. 5760 of 2010 is required to be rejected as these prayers do not inspire any confidence that they are made out of genuine difficulties on part of the company. The Court hasten to add here that assuming that there was genuine difficulty on the part of the company in providing work to the workmen at Surat, then also, the Court needs to be mindful of the fact that the attempt to offer them work at Mumbai is preceding with history which is amply demonstrated to the tendency and propensity on the part of the company in dodging its statutory liability qua 7 workmen who have been languishing for their legitimate right to be established in various courts, including this Court. The earlier proceedings arising form Special Civil Application No. 134 of 2006 and the fact that workmen were required to file two civil applications and in both the civil applications Courts were constrained to pass orders against the company and only after the orders were passed workmen were paid their arrears u/s 17B of the I.D. Act itself is sufficient to militate against the claim of bonafide offer made to he workmen to work at Mumbai. Therefore, when there lacks bonafide in the offer the same cannot be said to be a valid ground for denying the workmen to receive 17B wages as ordered by this Court.
Assuming for the sake of examining and without holding that the company has bonafide requirement and company is offering proper work at Mumbai, then also, question arises as to whether the same could be said to be a sufficient compliance with provision of law so as to absolve the company of its statutory liability to pay last drawn wages to the workmen. The answer would be an emphatic NO, as the Industrial Law Jurisprudence contains specific safeguards to avoid any possibility of or remote possibility of workmen being victimized and exploited. Therefore, bearing those provision in mind if one examine provision of section 17B, then, it would be absolutely clear that section 17B in itself is one of such safeguard under which when the employer is carrying out proceedings against the order of reinstatement, then the workmen is not to be left to fend for himself without any protection from the statute or without any assistance which is otherwise available as per the statutory provision in form of section 17B. Thus section 17B provision is required to be viewed from the angle it enable the workmen to withstand the challenge posed to him by the employer wherein there is attempt to dislodge the order of reinstatement by preferring appropriate proceedings challenging the same. When such a challenge is posed to the workmen, it becomes employer''s duty to see to it that not only the workmen are paid their last drawn wages but under the guise of order under the genuine difficulty also workmen''s service conditions may not be changed. The offer of reinstatement which is conditional offer cannot be forced upon the workmen so as to deny them their legitimate right to receive wages. The likely posting of offer of reinstatement at any place than the place where workmen were required to be reinstated would amount to writing a unilateral contract of service condition which cannot be in consonance with provision of I.D. Act and therefore, such an offer if not acceptable to the workmen, cannot be foisted upon the workmen. In the instant case it is all the more so that the company has failed in establishing that they have enough or sufficient work in which present workmen could be accommodated even at Mumbai. The offer of accommodation and offering conveyance allowance is though coming forward from the counsel, it has not been reduced into writing any manner nor has intimated in its affidavit to the workmen as to how a technical hand is to perform duties in an office. Lack of offer of proper work by the company to the workmen at Mumbai is evident from the bald and cryptic invitation which amounts to paying lip service to the provision of law defeating the substance of law i.e. non victimization of workmen during pendency of proceedings. Therefore, in my view Civil Application No. 5760 of 2010 is required to be dismissed being bereft of merits and is accordingly dismissed. Consequent thereof Civil Application No. 5310 of 2010 will stand disposed of as being allowed.
So far as main petition being Special Civil Application No. 134 of 2006 is concerned, this Court is of the considered view that since there is non-compliance of section 17B of I.D. Act, this Court has observed that there is clear breach of statutory provision of law on the part of the petitioner company which conduct would disqualify the employer to continue with the petition as the compliance with provisions of section 17B is mandatory and non compliance therewith, should result into non prosecution of the petition itself. However, since civil application No. 5760 of 2010 was pending, this Court is of the view that straightway dismissal of Special Civil Application No. 134 of 2006 without affording opportunity to the employer to pay arrears of 17B would amount to non affording an opportunity. Hence, though the employer does not deserve any further opportunity as could be seen from the earlier orders and narration mentioned herein above, this Court is inclined to pass the following order.
The workmen be paid 17-B wages and arrears on or before 6/11/2012 and obtain receipts thereof from the workmen, failing which the petition being Special Civil Application No. 134 of 2006 shall stand dismissed qua the challenge to the order of reinstatement against present workmen. Baring that, the petition is surviving, i.e. challenge to reinstatement will stand dismissed without any further recourse to this Court.
Thus, Civil Application No. 5310 of 2010 is disposed of as being allowed. Civil Application No. 5760 of 2010 stands dismissed, and notice is discharged. However the employer is directed to pay 17-B wages to the workmen, including arrears on or before 6/11/2012, failing which challenge to reinstatement in Special Civil Application No. 134 of 2006 will stand dismissed.