Gujarat High Court

State Of Gujarat vs Ishavarbhai Shidavabhai ... on 1 February, 2021

Bench: Nirzar S. Desai

         C/SCA/13557/2020                                        JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 13557 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRZAR S. DESAI

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1     Whether Reporters of Local Papers may be allowed to
      see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

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                           STATE OF GUJARAT
                                 Versus
                   ISHAVARBHAI SHIDAVABHAI DHODHADE
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Appearance:
MS ASMITA PATEL, AGP for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1,2
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    CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                               Date : 01/02/2021

                               ORAL JUDGMENT

1. Heard Ms. Asmita Patel, learned Assistant

Government Pleader for the petitioner - State.

2. By way of filing the present petition, the

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petitioners have challenged the order dated 31st

August, 2018 passed by the learned Presiding

Officer, Labour Court, Valsad below Exhibit 41 in

the Payment of Wages Act Application No.24 of

2010 whereby the learned Presiding Officer,

Labour Court, Valsad partly allowed the

application preferred by the respondent workman

and directed the present petitioners to pay a sum

of Rs.20,354.40/- within a period of 30 days and

the cost of Rs.3,000/- was also awarded to the

present petitioners with a direction to pay the

same to the respondent herein.

3. Brief facts giving rise to the present

petition are as under.

1. It was the case of the respondent

workman before the Controlling Authority

under the Payment of Wages Act, Valsad that

he was serving under the petitioner since

1988 as a Watchman. He had worked for more

than 240 days in each year. His services were

governed by the various provisions of the

labour law. However, the petitioner never

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gave him any appointment letter, attendance

card, salary slips, leave details etc. He was

not getting any leave or benefits of leave

encasement from the petitioners. He used to

perform his duties from 08 : 00 a.m. to 06 :

00 p.m. The petitioners herein were not

paying him any weekly off or overtime and

though he used to work for 30 days in every

month, the petitioner used to pay him wages

only for the period of 26 days. According to

the workman, since February-2010, though the

petitioners were taking work for the entire

month, the petitioners used to pay him the

wages only for the period of 15 days and the

petitioners used to deposit the said amount

in the bank account. Accordingly, the workman

preferred the application under Section 15

(2) and 16 of the Payment of Wages Act before

the learned Controlling Authority, Valsad

under the Payment of Wages Act and prayed for

his outstanding dues towards the payment of

wages. According to the respondent workman,

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there was an outstanding amount of

Rs.43,484/-, which he claimed by filing the

payment of wages application no.24 of 2010

and prayed for the payment of the said amount

along with the penalty on the said amount and

cost of the litigation.

2. The aforesaid application was contested

by the present petitioners by filing the

written statement. It was the say of the

petitioners that the activities of the Forest

Department can be said to be welfare

activities and the motive behind those

activities is not to earn any profit and

accordingly, the Industrial Disputes Act,

1947 is not applicable in respect of the case

of the respondent workman. The petitioner

also took a defence that as and when the

services of workman was required, he was

called for and was paid and accordingly, the

petitioner denied the claim of the workman

raised in the claim statement by saying that

the respondent is not entitled for the amount

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which was claimed by him.

3. After considering the materials on

record as well as the oral and written

evidences adduced by the respective parties,

the learned Presiding Officer, Labour Court,

Valsad partly allowed the application

preferred by the respondent workman and

passed the order directing the present

petitioners to pay a sum of Rs.20,354.40

within a period of 30 days from the date of

the order along with the cost of Rs.3,000/-.

4. The order passed by the learned Presiding

Officer, Labour Court, Valsad is under challenge

by way of this petition.

5. It is noteworthy that the order, which is

under challenge was passed on 31st August, 2018 by

the Presiding Officer, Labour Court, Valsad below

application preferred by the workman under

Section 15 (2) and 16 of the Payment of Wages

Act. As per the scheme of the Payment of Wages

Act, Section 17 provides for an appeal against an

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order dismissing either wholly or in part an

application made under Sub Section 2 of Section

15 or against the direction made under Sub

Section 3 or Sub Section 4 of Section 15 within a

period of 30 days from the date of the order.

Section 17 (1A) of the Payment of Wages Act

further provides that while preferring the

appeal, the appellant is also required to deposit

the amount payable under the direction appeal

against and the said certificate must accompany

the appeal. Section 17 of the Payment of Wages

Act reads as under.

17. Appeal.--

(1) 69 [An appeal against an order dismissing either wholly or in part an application made under sub-section (2) of section 15, or against a direction made under sub-section (3) or sub-section (4) of that section] may be preferred, within thirty days of the date on which 70 [the order or direction] was made, in a Presidency-town 71 [***] before the Court of Small Causes and elsewhere before the District Court--

(a) by the employer or other person responsible for the payment of wages under

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section 3, if the total sum directed to be paid by way of wages and compensation exceeds three hundred rupees 72 [or such direction has the effect of imposing on the employer or the other person a financial liability exceeding one thousand rupees], or 73 [(b) by an employed person or any legal practitioner or any official of a registered trade union authorized in writing to act on his behalf or any Inspector under this Act, or any other person permitted by the authority to make an application under sub- section (2) of section 15, if the total amount of wages claimed to have been withheld from the employed person exceeds twenty rupees or from the unpaid group to which the employed person belongs or belonged exceeds fifty rupees, or]

(c) by any person directed to pay a penalty under 74 [sub-section (4)] of section 15. 75 [(1A) No appeal under clause (a) of sub- section (1)] shall lie unless the memorandum of appeal is accompanied by a certificate by the authority to the effect that the appellant has deposited the amount payable under the direction appealed against.] 76 [(2) Save as provided in sub-section (1), any order dismissing either wholly or in part

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an application made under sub-section (2) of section 15, or a direction made under sub- section (3) or sub-section (4) of that section shall be final.] 75 [(3) Where an employer prefers an appeal under this section, the authority against whose decision the appeal has been preferred may, and if so directed by the court referred to in sub-section (1) shall, pending the decision of the appeal, withhold payment of any sum in deposit with it.

(4) The court referred to in sub-section (1) may, if it thinks fit, submit any question of law for the decision of the High Court and, if it so does, shall decide the question in conformity with such decision.]

6. It is required to be noted that though as per

the scheme of the Payment of Wages Act, 1936, the

order passed under Section 15 (2) is appealable

order at the instance of the employer along with

the certificate to the effect that the amount

awarded by the learned Presiding Officer is

deposited, the present petition is preferred

bypassing the provisions of the appeal.

7. A perusal of the Section 17 of the Payment of

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Wages Act would indicate that the petitioner was

required to file an appeal as provided in Section

17 along with depositing the entire amount as

awarded by the Presiding Officer, Labour Court,

Valsad before filing the Appeal and by

producing / attaching a certificate to that

effect. The appeal was required to be filed

within a period of 30 days as provided under

Section 17. However, the order dated 31st August,

2018 is challenged by the petitioner straightway

before this Court without preferring any appeal

before the learned District Court, Valsad after a

delay of more than 2 years. Even the delay is not

justified in the memo of petition and therefore,

the petition is required to be dismissed on the

ground of non availability of alternative remedy.

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8. When this aspect was pointed out to Ms.Asmita

Patel, learned Assistant Government Pleader, she

submitted that there are catena of decisions,

whereby this Court as well as the Supreme Court

have taken a view that under exceptional

circumstances, under Articles 226 and 227 of the

Constitution of India, this Court has powers to

entertain the petition straightway, even if it is

preferred bypassing the statutory appeal as

provided under Section 17 of the Act. Ms.Asmita

Patel, learned Assistant Government Pleader

submitted that actually, the workman was paid the

amount of Rs.1,73,010/- towards his outstanding

wages and nothing further was required to be paid

to the workman and the learned Controlling

Authority under the Payment of Wages Act has

committed an error by not appreciating the fact

that the amount stated hereinabove is already

paid to the workman and there was no outstanding

amount and therefore, the order passed by the

learned Presiding Officer, Labour Court, Valsad

is bad in law and the application preferred by

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the petitioners deserves to be interfered with.

Alternatively, Ms.Asmita Patel, learned Assistant

Government Pleader submitted that in view of

Section 17 of the Payment of Wages Act, which

provides for an appeal before the competent

Court, if this Court is not entertaining this

petition, in that case, liberty may be reserved

in favour of the petitioner to act in accordance

with Section 17 of the Payment of Wages Act,

1936. She also urged that this Court may relegate

the petitioner to the remedy of appeal without

going into the merits of order, which is under

challenge by way of this petition. It is further

submitted that after the period of 30 days

subject to the applicability of Section 5 of the

Limitation Act, on showing sufficient cause, a

period of delay caused in preferring the appeal

can be condoned. In support of her contention,

Ms.Asmita Patel, learned Assistant Government

Pleader draws attention of this Court and relies

upon the judgment dated 13th January, 2011 passed

in Special Civil Application No.14537 of 2010 in

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the case of Bavjibhai Dayabhai Solanki & 3

Vs.Parshuram Pottery Works Co.Ltd. & 1. She also

draws attention on para nos.4 to 7 of the

aforesaid judgment, which reads as under.

"4. Mr. Varun Patel, learned advocate appearing for the respondents could not controvert the fact that the law prevailing and the provision of section 17 of the Payment of Wages Act 1936 so far as the Gujarat is concerned does carry a provision whereby it is expressly provided that provision of section 5 of Indian Limitation Act is applicable to the appeal under section 17 of the Payment of Wages Act 1936.

5. In view of the aforesaid submissions and in view of the fact that the trial court has committed an error in not appreciating applicable provision prevalent in the State of Gujarat in respect of section 17 of Payment of Wages Act 1936, this petition is required to be allowed on limited ground and at the same time it is required to be observed that, this Court has not opined anything on merits of the delay condition application in any manner. At this stage it may be mentioned that learned advocate Mr. Patel for the respondents was correct in his submission that the decision cited in the judgment impugned in this matter appears to be that of Allahabad High Court in case of HIND MAZDOOR SABHA Vs. STATE OF U.P. AND OTHERS, reported in 2000-II-LLJ pg. 583, as the extracted portion therefrom also go to support submission of Mr. Patel. The provision applicable in State of Gujarat so far as

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section 17 is concerned, it contains clear stipulation that section 5 of the Limitation Act would be applicable to the appeal proceedings under section 17 of the Payment of Wages Act 1936.

Therefore, the judgment relied upon by the learned court while deciding the delay condonation application was in fact not applicable to the facts & circumstance of the case and its application, as it was governed by the law and provisions applicable in the State of Gujarat.

6. In the result the petition succeeds. The order impugned dated 29/7/2010 made in Misc. Civil Application No. 189 of 2010 is hereby quashed and set aside. The matter is remanded back to the concerned Court to decide Misc. Civil Application No. 189 of 2010 afresh, in view of the relevant prevalent provision applicable in the State of Gujarat in so far as Section 17 of Payment of Wages Act 1936 is concerned. The concerned Court shall decide delay condonation application on its own merits, after giving opportunity to both the sides. Rule made absolute to the said extent. No order as to costs.

7. It is further clarified that, this Court is not expressing any opinion on the challenge to the main order as the same shall not survive in view of the fact that now the matter is remanded back o the question of deciding delay condonation application."

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9. Having gone through the order, which is under

challenge by way of this petition and having

considered the provisions of Section 17 of the

Payment of Wages Act, 1936, this Court has

noticed that Section 17 also provides for filing

an appeal, first the employer is required to

deposit the amount before the authority as

provided under Section 17 and once that amount is

deposited and the certificate to that extent is

issued and the same is required to be accompanied

with Appeal, then only, the appeal can be

considered. In the instant case, though the order

was passed on 31st August, 2018, since then no

appeal is preferred and the petitioner has not

deposited any amount as stated by Ms.Asmita

Patel, learned Assistant Government Pleader, on

instructions. Section 17 further provides that

the appeal is required to be preferred within 30

days from the date of the order and therefore,

considering the fact that the order is dated 31st

August, 2018, 2 years have already gone, the

amount awarded by the learned Presiding Officer,

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Labour Court, Valsad is not deposited by the

petitioners and also considering the fact that

the amount awarded is only Rs.20,354.40 by the

authority under the Payment of Wages Act, if the

ratio laid down by the judgment as cited by

Ms.Asmita Patel, learned Assistant Government

Pleader in the case of Bavjibhai Dayabhai Solanki

(supra), is binding upon this Court, the

petitioner is required to be relegated to the

remedy of appeal by preferring the appropriate

application for condonation of delay. However,

considering the peculiar circumstances of this

particular petition, where the petitioner is

directed to pay the amount of Rs.20,354.40 only,

which is very small amount, if the petitioner is

relegated to the competent Court to file the

appeal, ultimately it would delay the legitimate

payment of the workman. Further more, the amount

awarded by the Presiding Officer, Labour Court,

Valsad is very meager amount of Rs.20,354.40 and

therefore, now at this juncture, after more than

two years of the order under challenge is passed,

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if any liberty is given to the petitioner to

prefer an appeal under Section 17, in that case,

it would amount to putting the respondent workman

to hardship for getting his legitimate

outstanding amount of Rs.20,354.40. For such

meager amount, the respondent workman cannot be

made to suffer only because of the fact that the

petitioner has not filed the appeal within

prescribed limitation and in-stead, the

petitioner challenged the said impugned order

before this Court by way of this petition.

Therefore, the request of Ms.Asmita Patel,

learned Assistant Government Pleader to grant

permission to the petitioners to prefer the

appeal under Section 17 by not entering into the

merits, is rejected. However, the permission to

prefer the appeal is rejected only because of

smallness of the amount awarded by the authority

under the Payment of Wages Act and therefore,

since this order is passed considering the

peculiar facts of the case, the same may not be

treated as a precedent.

         C/SCA/13557/2020                                                  JUDGMENT



10. Now,          if        the        merits       of        the     order           under

challenge are examined, it can be seen that the

order dated 31st August, 2018 is passed after

considering the reply filed by the petitioners

and after hearing the petitioner. Learned

Presiding Officer, Labour Court, Valsad has

considered the submissions made on behalf of the

petitioners and after examining the evidences on

record and other materials, the impugned order is

passed. Therefore, on perusal of the order, it

seems that the order dated 31st August, 2018

passed by the learned Presiding Officer, Labour

Court, Valsad below Exhibit 41 in the Payment of