SCA/782/2007 1/7 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION No. 782 of 2007

=========================================================
ANKUR TEXTILE - Petitioner(s)
Versus
ASHISHBHAI HARICHARAN PANDIT - Respondent(s)
=========================================================

Appearance :
M/S TRIVEDI & GUPTA for Petitioner(s) : 1,
NOTICE SERVED for Respondent(s) : 1,
MR HEMANT B RAVAL for Respondent(s) : 1,
=========================================================
CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD

Date : 14/12/2007

ORAL ORDER

1. Heard learned advocate Mr.Nayak for M/s. Trivedi

and Gupta for the petitioner and learned advocate

Mr.H.B.Raval for the respondent.

2. In the present petition, the petitioner has

challenged the order passed by Labour Court in

T.Application No.136 of 1999 dated 7.2.2005 whereby

the order of termination dated 29.1.1999 is set aside

by the Labour Court and granted 75% back wages of

interim period with continuity of service.

3. This order was challenged by the employer being

Appeal (IC) No.15 of 2005 wherein the appellate Court

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SCA/782/2007 2/7 ORDER

by order dated 30.9.2005 modified the order qua back

wages and directed that considering the average

presence 10.340, 25% back wages is to be paid by the

petitioner to the respondent workman. It is necessary

to note one important aspect that while deciding the

application by the Labour Court finally, the Labour

Court has examined the question of legality and

validity of departmental inquiry vide Exh.8 and

passed order on 14.6.2000 wherein the inquiry is

declared vitiated and opportunity was given to the

petitioner to prove the misconduct if he so desires.

Thereafter, the final order is passed in favour of

workman setting aside the termination order and

granted the back wages which has been modified by

appellate Court. The workman is out of job since

29.1.1999. The respondent workman was working with

the petitioner about five years period.

4. I have heard learned advocate Mr.Nayak for the

petitioner and learned advocate Mr.Raval for

respondent.

5. Considering the submissions made by both the

learned advocates, the question involved in the

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SCA/782/2007 3/7 ORDER

present petition requires detailed examination.

Hence, RULE. NOTICE as to interim relief returnable

on 21.1.2008.

6. Before passing the interim order, the facts

which are relevant required to be noted. The

respondent is having five years service and his

service was terminated on 29.1.1999 and therefore, he

approached before the Labour Court in the year of

1999 itself. Now the matter reached to this Court

about more than 8 years have passed. Before the

labour Court, the workman in his deposition has

deposed that he is running pan shop but not employed

in any establishment and receiving adequate

remuneration. The question is that, whether doing

some self-employment can be considered the gainful

employment or not, is to be examined by this Court.

However, if this Court will stay the entire order

then, reinstatement is also required to be stayed.

The concurrent finding of two Courts and this Court

is exercising the power under Article 227 of the

Constitution of India. Therefore, the first order

passed by Labour Court on 7.2.2005 and second order

passed by appellate Court on 30.9.2005. Thereafter,

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SCA/782/2007 4/7 ORDER

the review application is filed by the petitioner

being Review Application No.2 of 2005 and that review

application is rejected on 17.5.2006. Therefore, more

than 1 and 1/2 years have passed but, workman is not

reinstated by the petitioner, though no stay is

operating against the order in question.

7. Learned advocate Mr.Nayak submitted that

reinstatement is not possible. Learned advocate

Mr.Raval for workman submitted that if the

reinstatement is not possible then, last drawn wages

may be directed to the petitioner to pay to the

respondent workman so he can maintain his family

during the pendency of this petition, otherwise he is

not able to maintain the family in absence of salary.

He submitted that Section 17B of the I.D.Act,1947 is

strictly not applicable to present proceedings but,

he submitted that in analogous situation, the Court

may consider the similar relief to be granted to the

respondent workman and technical approach may not be

taken so workman may get the wages from the date of

order passed by the Labour Court. He further

submitted that irrespective of the Section 17B of the

Act, this Court is having extraordinary jurisdiction

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SCA/782/2007 5/7 ORDER

under Article 226 of the Constitution of India,

therefore, he requested this Court to exercise the

such extraordinary power in favour of respondent and

to grant the relief.

8. I have considered the submissions made by both

the learned advocates and have also considered the

fact that reinstatement is not possible as learned

advocate Mr.Nayak has made submissions. In such

circumstances, when two Court's verdict is in favour

of respondent then, blanket stay cannot be granted,

otherwise the workman remains without work and wages

and he will be put to starving condition. Therefore,

this Court has to consider the question of granting

the interim relief and exercise the discretionary

jurisdiction as technicalities cannot hijack the

divine rhythm of the justice. Ultimately, the purpose

of this Court to do justice between the parties and

justice will be done to the parties who is sufferer

according to law. This question in detailed examined

by this Court in case of DUNGARBHAI DAHYABHAI PARMAR

VS. ASHOKA COTSYAM, reported in 2003 (3) GLR 2409,

where the proceedings are pending under the

provisions of Bombay Industrial Relations Act,1946.

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SCA/782/2007 6/7 ORDER

The order passed by this Court granting the last

drawn wages in favour of workman was carried into the

appeal and appeal is also withdrawn by the appellant.

Therefore, I am relying upon my earlier order on

similar circumstances while considering the case for

interim relief.

9. In light of aforesaid documents, ad-interim

relief in terms of Para.10(D) on condition that

petitioner shall have to pay last drawn wages to the

respondent workman w.e.f. 7.2.2005 the date on which

the Labour Court has granted the relief till

31.12.2007, within a period of one month from the

date of receiving the copy of this order.

10. It is further directed to the petitioner to pay

regularly the last drawn wages to the respondent

workman till the matter is finally decided by this

Court. The respondent workman shall have to file

affidavit before this Court within a period of one

week to the effect that he is unemployed from date of

order - 17.2.2005. Copy of the affidavit of the

workman is to be supplied to learned advocate

Mr.Nayak who is appearing on behalf of petitioner by

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SCA/782/2007 7/7 ORDER

learned advocate Mr.Raval.

11. This interim order is passed by this Court while

exercising the power under Article4 226 of the

Constitution of India and not under the provisions of

Section 17B of the I.D.Act,1947.

(H.K.RATHOD,J.)

(vipul)

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