Rajubhai Naranbhai vs State of Gujarat and Others

Ravi R.Tripathi, J.—Rule.

Mr.M.S.Rao, learned AGP, appears and waives service of Rule on behalf of the opponents.

This Civil Application is filed by the applicant,respondent-workman (in Special Civil Application),seeking a direction against the opponents herein,original petitioner in Special Civil Application, tocomply with the provisions of Section 17(B) of theIndustrial Disputes Act, 1947 ("the Act" for short). It is further prayed that the provisions of Section 17(B) ofthe Act be complied, as are interpreted presently, and asis pointed out in this Civil Application from the datefixed for implementation of the award in question duringthe pendency of the main petition.

The Special Civil Application was filed on 16thAugust, 2002 and on 1st October, 2002, the Court issued`Rule'' and directed the same to be heard with SpecialCivil Application No.8533 of 2002 and granted ad interimrelief in terms of paragraph-15(b). Paragraph 15(b)reads as under:

"Pending admission, hearing and final disposal of this petition Your Lordship may be pleased to stay the implementation, execution and operation of the award of the Learned Labour Court, Bhavnagar in Ref.(LCB) No.653/1993 dated 25.1.2002."

Despite the fact that the aforesaid order dated1st October, 2002 was served to the respondent-workman,he did not move this Court before filing the presentCivil Application, which is filed on 2nd July, 2004. Anaffidavit, which is sworn on 30th June, 2003, is servedto the learned AGP on 11th August, 2004 only wherein it is stated that, "...... I say that I am unemployed andremained unemployed during the pendency of theproceedings before the Labour Court and even today. Inother words, I say that I am unemployed and I have notbeen able to secure any alternative or gainful employmentsince my termination of service and till today, I amunemployed. I am filing this affidavit with a view toget the benefits of sec. 17(B) of I.D.Act, 1947."

The learned Advocate appearing for theapplicant-original respondent submitted that the benefitsof Section 17(B) of the Act should be granted from thedate, this Court stayed the award of the learned Judge ofthe Labour Court i.e. on 1st October, 2002. Hesubmitted that in the alternative, the benefits should begranted from the date on which the affidavit was sworn oni.e. 30th June, 2003 (as mentioned hereinabove, the samewas served to the learned AGP only on 11th August, 2004)despite the fact that no prayer was ever made at anystage for grant of the benefits of Section 17(B) beforefiling of this Civil Application.

The learned Advocate appearing for theapplicant-workman relied upon the decisions of theHonourable the Apex Court quoted in the Civil Applicationand also the decisions of this Court in Special CivilApplication No.12143 of 2003 (Date of decision :16.12.2003) and Civil Application No.5685 of 2002 inSpecial Civil Application No.599 of 2002 and alliedmatters (Date of decision : 22.01.2003). However, thelearned Advocate could not convince this Court that thesedecisions have application to the facts of this case andthat those decisions lay down a proposition of law, ascontended by the learned Advocate.

The AGP, Mr.Rao, has filed an affidavit-in-replyto this Civil Application affirmed by Mr.G.P.Desai,Deputy Executive Engineer, Irrigation Sub.Division-1,Palitana, opposing the grant of benefits ofSection 17(B), as prayed for. He submitted that thebenefits u/s 17(B) cannot be granted from thedate of the award or in the alternative from the date ofthe order of this Court i.e. 1st October, 2002 or fromthe date of the affidavit i.e. 30th June, 2003. Hesubmitted that as the applicant-original respondent hasapproached this Court by filing this Civil Application on2nd July, 2004, orders granting benefits underSection 17(B) of the Act can be passed only from the dateof the application.

Having heard the learned Advocates for theparties, more so, in absence of any explanation comingforward from the applicant-original respondent herein fornot approaching this Court soon after the order dated 1stOctober, 2002 was served to him, this Court is of theopinion that benefits u/s 17(B) can be grantedonly from the date of the application and not from anyprior date. Provision of Section 17(B) is made toprovide subsistence allowance to a workman/employee. Theone who is without such support is expected to rush tothe Court for implementation of the judgement and award.In any case, when such person is served with an order ofstay, he is supposed to approach this Court at theearliest. In this case, the applicant was represented byan Advocate, hence, it cannot be argued on behalf of theapplicant that he was not aware of the legal position.

Having considered the contents of the CivilApplication and the affidavit, the Civil Application isallowed. The opponent herein, original petitioner inSpecial Civil Application, is directed to comply with theprovisions of Section 17(B) of the Act from the date ofthe application i.e. 2nd July, 2004. The opponentsherein, original petitioners, are directed to pay thecurrent minimum wages from the date of the applicationi.e. 2nd July, 2004, on the applicant filing anundertaking before this Court within two weeks from todayto the effect that in case the award is set aside, theapplicant will refund the amount of difference betweenthe `last wages drawn'' and the `current wages paid'' tohim under this order within such time as may be directedby the Court.

It goes without saying that it will be open for the opponents herein-original petitioners to allow theapplicant to join the service instead of paying idlewages u/s 17(B) of the Act.

Rule is made absolute to the aforesaid extentonly. No order as to costs.