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Judgment
Heard learned advocate Mr.B.J. Trivedi for the applicant and learned Assistant Government Pleader Mr.Manan Mehta for the respondents.
This application is filed seeking following prayers.
"(a) to allow this petition and to arraign the respondents for wilful breach of the non-compliance with the order passed by this Hon''ble Court in Civil Application No. 2412 of 2015 in Special Civil Application No. 12578 of 2014 and deal with them in an exemplary manner;
(b) to dismiss Special Civil Application No. 12578 of 2014, as the order, passed in Civil Application No. 2412 of 2015 or at least vacate the interim relief, granted in Special Civil Application No. 12578 of 2014, which was subject to compliance of Section 17-B of the I.D. Act, as per the order, dated 25-02-2015, passed in Civil Application No. 2412 of 2015;
(c) to grant such further and other reliefs, as may be deemed to be just and proper."
Applicant herein is the original respondent in Special Civil Application No.12578 of 2014 which came to be filed by the State of Gujarat against judgment and award dated 21st December, 2013, whereby Labour Court No.2, Bhavnagar, directed reinstatement of the applicant-workman with 50% back wages and other consequential benefits. This Court issued Rule on 21st January, 2015 and granted ad-interim stay against the judgment and award. Thereafter the workman filed Civil Application No.2412 of 2015 praying for direction against the petitioner-employer to accord benefits under Section 17B of the Industrial Disputes Act, 1947. The said Civil Application was allowed on 25th February, 2015 and it was provided that order dated 21st January, 2015 staying the impugned judgment and award shall be subject to compliance of Section 17B of the Industrial Disputes Act, and further that the said benefit shall accrue to the workman from the date of filing of the petition and the arrears arising thereby shall be paid within a period of eight weeks.
3.1 The present Miscellaneous Civil Application came to be filed on 14th September, 2016. According to the applicant-original respondent, the employer has not paid monthly wages in terms of the order passed in Civil Application No.2412 of 2015 aforementioned. It is the say of the applicant that amount of Rs.27,472/- was paid on 02nd March, 2016 and further that amount of Rs.07,138/- was paid towards monthly salary. It is the grievance that no other payments were made and the applicant was left in lurch. The applicant has made further following averments.
".... The most disconcerting question is that after the amount of Rs. 7,138/- [Rs. seven thousand one hundred thirty eight] was deposited in the account of the applicant, he started receiving phone calls from the concerned officers of the respondent Department, more especially by one Shri Atul Mehta, working as Clerk in the Irrigation Officer at Bhavnagar, who also comes to the irrigation Sub-Division Office at Talaja to the effect that I was entitled to an amount of Rs. 1,571/- [Rs. one thousand five hundred seventy one] per month towards the salary, as per 17-B of the Industrial Disputes Act, as per the order, dated 25-02-2015, passed in Civil Application No. 2412 of 2015 in Special Civil Application No. 12578 of 2014 and hence, I must return the difference from the amount of Rs. 7,138/- [Rs. seven thousand one hundred thirty eight], which was deposited in my account on 30-03-2016 and unless the same is done, I would not be given any monthly salary [Copy of the pass-book of the account of the petitioner is annexed hereto and marked Annexure ''II'']. When I insisted that what he said on phone should be given to me in writing, he stopped calling me and since then, I have not been paid monthly salary, as ordered by this Hon''ble Court, passed on 25-02-2015, passed in Civil Application No. 2412 of 2015 in Special Civil Application No. 12578 of 2014. It is pertinent to respectfully point out that a letter was issued by the petitioner on 08-03-2016 to the Executive Engineer, Bhavnagar Irrigation Division [copy at Annexure ''III''], but the same has not evoked any response."
Learned advocate for the applicant contended that the applicant hails from lower strata of the society and was not properly treated by the officers despite the order of this Court. He submitted that order dated 25th February, 2015 passed in Civil Application No.2412 of 2015 has attained finality, yet applicant is not being paid any amount. He relied on decision of the Apex Court in Welset Engineering v. Vikas Auto Ind. [(2015) 10 SCC 609] and submitted that in view of provision of Order XXXIX Rule 2A of the Code of Civil Procedure read with Article 215 of the Constitution, the officers of the respondent are required to be booked for contempt. By pressing into service Tyyabbhai M. Bagasarwalla v. Hind Rubber Industries Private Limited [AIR 1997 SC 1240] it was submitted that the respondents could be punished for violation of interim orders.
4.1 The prayers in the Application came to be contested on behalf of respondent No.3-Deputy Executive Engineer, Shetrunji Canal Irrigation Sub Division, Talaja, Bhavnagar. The said authority deposed in the affidavit-in-reply to deny the averments and allegations. He denied that he would not have committed any willful or intentional disobedience of the directions of the Court.
4.2 According to the say of the authority in the affidavit, applicant was entitled to Rs.58.70 Ps. towards daily wages under the provision of Section 17B of the Act and that the said wages are duly paid to the applicant. It was stated that cheque No.001113 dated 02nd March, 2016 amounting to Rs.27,472/- was deposited in the bank account of the applicant pursuant to the order passed in Civil Application which was duly credited as evidenced by the copy of pass-book produced on record. It is stated on oath that total amount of Rs.27,472/- was paid to the applicant directly in his bank account.
4.3 It was thereafter stated in the affidavit- in-reply as under.
"... somehow through oversight, in March 2016, the department has released and paid Rs. 7138/- directly to the bank account of the applicant. I further say that the said amount was not in accordance with the provisions of section 17 B but the same was the full salary (for which the applicant is entitled). It is further submitted that as already stated hereinabove, the daily wages as per the section 17 B was Rs. 58.70 and therefore it was informed to the applicant that through oversight and by mistake the excess amount has been paid directly to his bank account i.e. Rs. 7138/-, for which the applicant is not entitled." ... as the department as paid excess amount to the applicant, throughout sight as stated hereinabove in paragraph No. 8, for which the applicant was not entitled and therefore the applicant was called upon to repay the excess amount however, the applicant was not responding and therefore the answering respondent have no any other option but to recover the said amount from the future payment under 17 B wages and therefore the same are being recovered...." 4.4 The applicant filed rejoinder affidavit to submit that no calculation is being furnished to show
that the amount was over paid. According to the applicant it is shrouded in the mystery as to why the State authorities make over payment. In the rejoinder affidavit, the applicant has raised contention about non-payment of minimum wages and further made grievance that approach of hire and fire was adopted by the employer which was a mighty State. It was submitted that a fair and reasonable wage is to be regarded as human right to be made available to unskilled worker.
Having considered the rival contentions, provision of Section 17B of the Industrial Disputes Act, 1947 may be recollected, reproducing the same as under.
"17B. Payment of full wages to workman pending proceedings in higher courts.-Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive or any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court:
Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be."
5.1 As per the aforesaid provision, workman would be entitled to receive last wages drawn during the period when judgment and award in his favour was
challenged by employer and remained stayed if the condition of showing that the workman was not gainfully employed, he may receive last drawn wages. As held by the Supreme Court in Dena Bank v Kiritkumar T. Patel [(1999) 2 SCC 106], it is well settled proposition that expression "full wages last drawn" occurring in Section 17B of the Act means wages drawn at the time of termination of service of the workman. This amount neither includes increments and Dearness Allowance worked out till the date of award, nor does it mean wages the workman would have drawn in pursuance to the impugned award. It was held that such an extended meaning is not warranted to be read in plain words of Section 17B, nor in the object thereof.
5.2 Thus, full wages last drawn to be paid to the applicant-workman was Rs.58.70 Ps. per day, which was the wages received by the workman when his services came to be terminated in the year 1993. The applicant-workman was Chokidar as per his own case who worked during 1992 to 1993. The applicant could show nothing which may pursued the Court to depart from the proposition that applicant was receiving wages more than the above at the time of termination. Nor there is any reason not to disbelieve the say of the authorities in this regard.
5.3 The averments as regards asking the applicant to return the amount, telephonic mishandling of the petitioner, etc., are not only denied by the respondent but same does not stands established by any material whatsoever so as to advert to the prayer for
taking action in contempt.
5.4 It cannot be said that the respondent- original petitioner has not paid full wages last drawn pursuant to the order dated 25th February, 2015 passed in Civil Application No.2412 of 2015. The claim of the applicant about higher wages received at the time of termination of service is in disputed realm and is specifically denied. It cannot be said that the employer has committed breach of any order.
Several issues raised namely that the applicant deserves to be paid minimum wages, and further that the Court may award higher amount than payable under Section 17B are not liable to be considered in this proceeding because they are not the subject matter of the present Miscellaneous Civil Application either in the pleadings or in the prayers. The only prayer is about non-compliance of order passed in Civil Application No.2412 of 2015 and further to dismiss the main Special Civil Application for non-compliance of Section 17B of the Act. The Court cannot travel beyond the prayers. Therefore, none of the other contentions are adverted to on their merits. The prayers made in this Civil Application are found not liable to be granted as, breach of Section 17B could not be established.
6.1 No breach much less any willful breach of non-compliance of order dated 25th February, 2015 in Civil Application No.2412 of 2015 could be shown or established. It is, however observed that respondent- employer shall continue to comply with grant of
Section 17B by regularly paying the full wages last drawn to the applicant.
6.2 Learned advocate for the applicant lastly submitted that instead of paying idle wages, respondent-employer may be directed to offer work to the applicant, for which he is ready and he would accept any work which may be offered for salary. The said direction cannot be issued by the Court in view of currency of the orders already passed in the proceedings. However, it is always open to the respondent employer-the State to offer work to the applicant by taking him for work during pendency of the petition. The applicant, however, cannot insist the Court to give such a direction. It is further observed that if the respondent is willing to give work to the applicant, present order shall not come in way.
In light of above, none of the prayers in the present Miscellaneous Civil Application would be granted. Application is hereby dismissed. Rule is discharged.