1. The applicant in Civil Application No. 6218 of 2012, who happens to be the respondent in Special Civil Application No. 18625 of 2011 has taken out this Civil Application with following prayers:
“(A)YOUR LORDSHIPS be pleased to allow this Civil Application;
(B) YOUR LORDSHIPS be pleased to direct the opponents (original petitioners) to pay the last drawn salary as per Sec.17(B) of Industrial Disputes Act, 1947, during the pendency of the above Special Civil Application No. 18625 of 2011;
(C) YOUR LORDSHIPS be pleased to grant such other and further reliefs are deemed fit in the interest of justice;”
The copy of this application appears to have been served upon the concerned officer in Government Pleader's office on 10.5.2012. The affidavit of workman being not gainfully employed from the date of award till filing of the affidavit is placed on record at page-6 Annexure – B. The same is affirmed on 1.5.2012.
2. The workman has made averment in this application that there was an order on 23.2.2012 passed by this Court (Coram: K.M.Thaker, J.) wherein, interim relief was specifically granted subject to compliance of Section 17B of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the I.D. Act' for short).
3. In light of this, the inaction on the part of respondent in Civil Application – petitioner in Special Civil Application, in respect of 17B of the I.D. Act wages would make them liable for violating statutory provisions, which in my view is a mandatory provision for maintaining the petition challenging the award of reinstatement passed by Competent Court under the provisions of I.D. Act.
4. Learned AGP has placed on record the fax massage received from Sir Takhatsinhji General Hospital, Bhavnagar addressed to learned AGP dated 11.9.2012 indicating therein that the proposal for payment is processed and is awaiting requisite approval from the State and hence, learned AGP should request for time. Accordingly, learned AGP requested for time in view of the request, which he has received by way of fax as stated hereinabove.
5. Learned advocate appearing for workman has strongly opposed any adjournment being granted and submitted that inaction on the part of concerned petitioner has resulted into depriving the workman of his legitimate statutory rights without fulfillment thereof, the petition itself cannot be maintained.
6. This court is of the considered view that in view of language employed in Section 17B of the I.D. Act, the employer being a State or its instrumentality or agency or in that matter - the private organization, cannot maintain or continue with the proceedings challenging the award of reinstatement under the provisions of Section 17B of the I.D. Act, especially when the employee workman has filed affidavit indicating that he is unemployed and he has not employed anywhere gainfully till filing of the affidavit, non-payment of 17B wages in my view amounts to flouting the statutory provisions, which resulted into depriving the workman of his not only right to receive the wages but sustenance to withstand the force enforced upon him on account of further litigation on behalf of the employer, as a result whereof, the employee is kept out of employment. The employer cannot be permitted to earn premium upon its own inertia and inaction and it deserves proper deprecation. Hence, the Court is left with no choice but to dismiss the main matter being Special Civil Application No. 18625 of 2011 for default, as there is a clear non-compliance of statutory provisions under Section 17B of the ID Act as well as the order of this court made while granting ad-interim relief on a condition of compliance with provisions of Section 17B.
7. The Court is of the considered view that the alternative plausible submission on the part of employer qua vacating the interim relief in absence of non-payment or non-compliance of Section 17B, would be of no avail to the employer as sustaining the petition looking to provisions of Section 17B of the I.D.Act, as the language of Section 17B of the ID Act cannot be permitted to be misinterpreted in any manner, which in my view, is a mandatory requirement for maintaining the petition challenging the award of reinstatement when the workman has filed the affidavit of he being not gainfully employed.
8. In view of this, the main petition being Special Civil Application No.18625 of 2011 itself is dismissed for default. The court has not opined on merits of the matter as there is a serious default, which goes to the root of the matter and which deprive the workman to his right to make effective defence in defending the stand in the petition, though he has an order in his favour from the competent court. Therefore, now dismissal of this petition for want of compliance of Section 17B of the I.D. Act will entitle the workman to take appropriate proceedings for enforcing the award in accordance with law.
9. It is required to be noted that one respondent in Civil Application is making request to the learned AGP to seek time on account of seeking approval from another respondent in Civil Application for making payment. When both the respondents are under an obligation to maintain this petition to make payment of 17B wages to workman, the workman cannot be left high and dry on account of such depricable attitude enforced on the part of employer.
10. The dismissal for default is a mere nomenclature employed for indicating the default on the part of employer. But if one looks at the language, it is clearly indicative of the fact that employer looses its right to continue with the petition, therefore, this petition is required to be dismissed on this ground, which will now not entitle the employer to bring any further rectification application and/or restoration application as the employer has forfeited its right to challenge the award or continue challenging the award without compliance with the mandatory provisions under section 17B of the I.D. Act. The petition, therefore, in my view, filed under Article 226 and/or 227 of the Constitution of India, would not be maintainable as the petitioner cannot be permitted to continue with the petition with impunity when on the face of it, it is established that there is a default on its part deliberately enough to deprive the workman of his legitimate right to defend his stand in the petition.
11. In the result, the Civil Application is allowed. The main matter being Special Civil Application No. 18625 of 2011 is dismissed. Rule is discharged. Interim relief stands vacated. No costs.
(S.R.BRAHMBHATT, J.) pallav