H.K. Rathod, J.
1. Heard learned Advocate Mrs. Yogini V. Parikh appearing on behalf of applicant-original petitioner-Agricultural Produce Market Committee, Botad and learned Advocate Mr. T.R. Mishra appearing on behalf of opponent-original respondent-workman.
2.The main Special Civil Application No. 21849 of 2006 is filed by present applicant-original petitioner-Agricultural Produce Market Committee, Botad (hereinafter referred to as 'A.P.M.C.') challenging the award passed by Labour Court, Bhavnagar in Reference (L.C.B.) No. 11 of 2001 dated 9th March, 2006, wherein, Labour Court, Bhavnagar has granted reinstatement with continuity of service with 50% back wages and consequential service benefits w.e.f. 19th April, 2000 with cost of Rs. 500/-.
3. Initially, this Court has issued notice on 12th October, 2006, thereafter, 'Rule' is issued by this Court on 2nd February, 2007 and also issued ad-interim relief, for back wages is concerned, on condition that the original petitioner-A.P.M.C. will pay the sum of Rs. 10,000/- to respondent-workman within 15 days from the date of order.
4. Learned Advocate Mrs. Parikh submitted that Rs. 10,000/- is paid to respondent-workman as per order dated 2nd February, 2007.
5. Here, reinstatement is not stayed by this Court, therefore, this Court has passed an order on 1st August, 2007, wherein, this Court has issued following directions in Para 8 which is as under:
8. Therefore, in view of the aforesaid submissions, it is directed to the original petitioner either to reinstate the respondent workman in service or to pay current wages to the respondent workman w.e.f. 9-3-2006 till 31-7-2007, within a period of one month from the date of receiving the copy of this order, and thereafter, it is open for the petitioner to either reinstate or to continue to pay current wages to the respondent workman till the matter is finally decided by this Court. Therefore, interim relief granted by this Court on 2-2-2007 is modified and confirmed accordingly.
6. Now, petitioner wants clarification of the aforesaid order and direction issued by this Court.
7. I have heard learned Advocate Mrs. Parikh, who is pointing out Page 10-appointment order dated 15th October, 1994, where condition of appointment is mentioned and daily wage of Rs. 40/- per day is fixed for the period upto the requirement of petitioner - A.P.M.C. and there is also a condition that when the service of respondent-workman is not required, petitioner can discharge the services of respondent-workman.
8. Therefore, learned Advocate Mrs. Parikh submitted that when there is no stay against the reinstatement, respondent-workman is entitled to work with the petitioner-A.P.M.C. on the same terms and conditions as it was initially appointed by the petitioner - A.P.M.C. by order dated 15th October, 1994. Therefore, she submitted that clarification may be made as per initial appointment order, so, unnecessary burden may not be upon the petitioner-A.P.M.C., meaning thereby that, after reinstatement of respondent, the petitioner-A.P.M.C. will provide work as and when it is available with petitioner-A.P.M.C. Accordingly, when work is not available then workman is not entitled any wages for those days.
9. This Court has passed an order on 1st August, 2007 in the presence of learned Advocate Mr. D.M. Thakkar, represented petitioner - A.P.M.C., who has made his submissions before this Court and dictation is also given in open Court in the presence of learned Advocate Mr. D.M. Thakkar. The option was demanded by learned Advocate Mr. D.M. Thakkar that either petitioner will reinstate if the work is available or work is not available, then, petitioner is prepared to pay current wages to respondent-workman. This statement is recorded by this Court in Para 7 of the order dated 1st August, 2007. Against the said statement of learned Advocate Mr. D.M. Thakkar, the following averments are made by the present applicant in Para 8.4(a) and Para 8.4(b), which are as under:
8.4(a) With reference to the above context, now, it is submitted that, as per the clarification given in the order dated 1-8-2007 by this Hon'ble Court, the opponent Shri Pareshkumar is to be reinstated, as there is no stay of this Hon'ble Court.
8.4(b) And since he is to be reinstated into his original post, Shri Pareshukumar is entitled to be reinstated as temporary dailyrated Auction clerk, subject to availability of work as per the condition of appointment letter dated 15-10-1994 and he will not be entitled for any wages if there is no work. In view of this, the statement made by the learned Advocate Mr. Thakkar as referred to in Para 7 of the order dated 1-8-2007, to the effect that:
Learned Advocate Mr. Thakkar for original petitioner submitted that option may be given to the petitioner if the work is available then petitioner will reinstate the respondent-workman. If the work is not available then petitioner is prepared to pay current wages to the respondent-workman.
It is against the spirit and intent of the appointment letter dated 15-10-1994, and therefore,-
This Hon'ble Court may kindly clarify that the reinstatement will be in the original post with the original conditions and petitioner has not to pay current wages to the respondent.
10. What efforts have been made by original petitioner - A.P.M.C., Botad to deny the legal right of the respondent-workman to receive full wages monthly last drawn which was received at the time of termination or at the time of reinstatement who is entitled to receive current wages from the employer. The respondent-workman was appointed as daily-rated auction clerk by order dated 15th October, 1994 - Page 10. Now, because of award of reinstatement with continuity of service with 50% back wages, which is under challenge in main petition, where, reinstatement is not stayed by this Court, at the relevant time, on 1st August, 2007, option requested by lawyer who was representing petitioner-A.P.M.C., and accordingly, this Court has passed an order. The present applicant - A.P.M.C. is not denying the statement made by learned Advocate Mr. D.M. Thakkar on 1st August, 2007. On relying upon that statement, this Court has passed an order on 1st August, 2007.
11. Now, to make some smart efforts by another lawyer engaged by petitioner in place of original lawyer to file such application pointing out original appointment order and wants clarification from this Court to permit the petitioner-A.P.M.C. to allow the respondent to work as and when the work is available, as if that, Labour Court award has no meaning, no value and no binding effect. Such type of approach and efforts by the employer against a small and poor employee who is appointed as daily-wager at the relevant time by the petitioner as daily-rated auction clerk and daily wage of Rs. 40/- per day. The petitioner being an employer - A.P.M.C., Botad, prima facie, looking to the steps and effect which may have some personal grievance against the respondent-workman, otherwise, such type of steps cannot be taken by the employer to the extent though reinstatement order is passed by the Labour Court granted reinstatement with continuity of service with 50% back wages of interim period with consequential benefits, meaning thereby, that only back wages has been stayed by this Court, then, reinstatement with continuity of service with consequential benefits is not stayed by this Court. The clarification which prayed by the applicant if it is granted, then, mandate of Section 17B of the Industrial Disputes Act, 1947 became nugatory, useless and meaningless. It is not necessary for the Court for granting the benefit under Section 17B of the Industrial Disputes Act, 1947, there must be stay of reinstatement is required, meaning thereby, there is no necessity of stay against the reinstatement even though provisions of Section 17B are applicable and this Court can direct the employer to pay monthly full wages last drawn by the workman. Section 17B suggests that in case of reinstatement, award is passed by the Labour Court in favour of any workman and the employer prefers any proceedings against such award in a High Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court, full monthly wages last drawn by him inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and affidavit by such workman had been filed to that effect in such Court.
12. After going through the entire Section, I am not able to find out that reinstatement must have to be stayed being a condition precedent for granting benefit of Section 17B of I.D. Act, 1947. There is no need to have the stay against reinstatement, even in absence of the stay, merely, award of reinstatement, if challenged by employer, prefers any proceedings against such award in High Court, then, during the period of pendency, workman is entitled the benefit of Section 17B of Industrial Disputes Act, 1947.
13. In such circumstances, the option was demanded as requested by the lawyer that if the work is available, then, they will reinstate the workman and if the work is not available then they will pay full wages last drawn by him. Now, to find out the way with present application with a clarification as petitioner will reinstate the respondent-workman on the original terms and conditions incorporated in appointment order and if after reinstatement, work is not available, he will have to starve without wages, meaning thereby, applicant wants permission from this Court by way of clarification that as and when work is not available with the petitioner-A.P.M.C., let respondent-workman may starve or put in starving condition means management will not pay any wages to the respondent-workman.
14. This being a serious matter. This Court has appreciated the efforts and understand the skill of the lawyer ignoring the object of Section 17B of the Industrial Disputes Act, 1947 which gives mandate to pay full wages last drawn to the workman if employee is not employed in any establishment or not receiving adequate remuneration from any establishment. Therefore, such type of practice adopted by the petitioner - present applicant - A.P.M.C. by filing present application not by same lawyer, but, by different lawyer, as if that change of lawyer will change the circumstances, petitioner is not aware about the fact that petitioner may change the lawyer, but Court will not be changed because clarification application must have to be placed before the same Judge who has passed the order. Fortunately, this being a fair procedure rightly observed by the High Court under the Rule, otherwise, parties to the proceedings may go to that extent that such type of application may be filed after obtaining the order on the basis of by changing the lawyer or by changing the Court. Therefore, this Court has taken serious note of such application filed by the present applicant. The order dated 1st August, 2007 passed by this Court after hearing learned Advocate Mr. D.M. Thakkar. No affidavit is filed by learned Advocate Mr. D.M. Thakkar that no such statement is made by him. [If one wants to hear a shocking description of the degrading standard in the legal profession one may hear the following observations of the Supreme Court in Bar Council, Maharashtra v. M.V. Dabholkar : [1976]2SCR48 :
Briefly expressed, these practitioners, according to testimony recorded by the State Disciplinary Tribunal, positional themselves at the entrance to the Magistrates' Courts, watchful of the arrival of potential litigants. At sight, they rushed towards the clients in an ugly screniurage to snatch the briefs, to lay claim to the engagements even by physical fight, to undercut fees and by this unedifying exhibition, sometimes carried even into the Bar Library, solicited and secured work for themselves. If these charges were true, any member of the Bar with elementary ethics in his bosom would be outrageous at his brethren's conduct.
15. Justice V.R. Krishna Iyer, the living legend of Indian Judiciary, has said about the role of Advocates in a democracy and their responsibilities to the society and the nation:
The rule of law cannot be built on the ruins of democracy, for where law ends, tyranny begins. If such be the keynote thought for the very survival of our Republic, the integral bond between the lawyer and the public is unbreakable. And the vital role of the lawyer depends upon his probity and professional lifestyle. Be it remembered that the central function of the legal profession is to promote the administration of justice. If the practice of law is thus a public utility of great implications and a monopoly is statutorily granted by the nation, it obligates the lawyer to observe scrupulously those norms which make him worthy of the confidence of the community in him as a vehicle of justice - social justice. The Bar cannot behave with doubtful scruples or strive to thrive on litigation.
About professional ethics and the skills to be developed for a successful career, I think I need not mention anything. Because professional ethics, I suppose is a subject expected to be learnt by the new Advocates themselves, by you. As such I will conclude my words once again quoting V.R. Krishna Iyer, J. from Bar Council, Maharashtra v. M.V. Dabholkar, case where the learned Judge has delineated the moral standard expected from a practitioner of law. He is of the view that the professional conduct of Advocates must be complete in tune with:
The setting of a calling to which Lincoln, Gandhi, Lenin and a galaxy of great men belonged. The high moral tone and the considerable public service the Bar is associated with and its key role in the developmental and dispute-processing activities, and above all, in the building up of a just society and constitutional order has earned for it a monopoly to practice law and an autonomy to regulate its own internal discipline. This heavy public trust should not be forfeited by legalizing or licensing fights for briefs, affrays in the rush towards clients, under-cutting and wrangling among members.
The aforesaid passage taken from Article published in 2007 (5) MLJ 72 written by Hon'ble Justice Dr. AR. Lakshmanan, Former Judge, Supreme Court of India in topic 'Advice to newly enrolled Advocates.'
16. Another angle of this application which I am now examining is that the aforesaid observations is made by this Court considering the conduct and smartness of the lawyer as well as the petitioner pointed out before the Court to put the workman in a condition by obtaining clarification that he should have to be remained in starving condition. The another effect of the application is that whether such type of application for clarification is maintainable in law or not. After proceedings stand terminated by passing the appropriate orders in presence of lawyer then to reopen the proceedings by way of Civil Application is not maintainable, otherwise, there would be confusion and chaos and the finality of the order would cease to have any meaning.
17. The above view is taken by the Apex Court in case of State of Uttar Pradesh v. Shri Brahm Datt Sharma and Anr. reported in : [1987]2SCR444 . The relevant Para 10 is quoted as under:
10. The High Court's order is not sustainable for yet another reason. Respondent's writ petition challenging the order of dismissal had been finally disposed of on 10-8-1984, thereafter nothing remained pending before the High Court. No miscellaneous application could be filed in the writ petition to revive proceedings in respect of subsequent events after two years. If the respondent was aggrieved by the notice dated 29-1-1986 he could have filed a separate petition under Article 226 of the Constitution challenging the validity of the notice as it provided a separate cause of action to him. The respondent was not entitled to assail validity of the notice before the High Court by means of a miscellaneous application in the writ petition which had already been decided. The High Court had no jurisdiction to entertain the application as no proceedings were pending before it. The High Court committed error in entertaining the respondent's application which was founded on a separate cause of action. When proceedings stand terminated by final disposal of writ petition it is not open to the Court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided a fresh cause of action. If this principle is not followed there would be confusion and chaos and the finality of proceedings would cease to have any meaning.
18. Recently, in case of Narpat Singh v. Rajasthan Financial Corporation reported in : AIR2008SC77 , the Apex Court has observed that application for clarification when the order is passed by the Court, and thereafter, an application lies ordinarily only for correcting clerical or accidental mistake, Court cannot entertain such application for clarification when the order is passed by this Court after hearing of both the parties, meaning thereby that, order dated 1st August 2007 is not challenged by the petitioner to the higher forum and now, prayer made to the extent to grant permission to reinstate the respondent with original terms and conditions, so, as and when, work is not available, he will not get any wages though reinstatement is complied by the petitioner A.P.M.C. The protection which has been given to the workman amending the Section when reinstatement is challenged to the higher forum, so, the workman may not be remained without wages and his family is to be maintained by receiving full wages last drawn by him during the pendency of proceedings before the High Court or Apex Court.
19. Therefore, according to my opinion, such kind of application is not maintainable in law. Apart from that, on considering the prayer made in this application on merits, such prayer cannot be granted by this Court to permit the petitioner to allow the workman on old service condition, otherwise, it amounts to indirectly granting permission to the petitioner though reinstatement order is complied, but respondent workman may not be able to get even full wages last drawn by him after the order of reinstatement. Such permission cannot be given by this Court, otherwise, it amounts to violate mandatory provisions of Section 17B of the Industrial Disputes Act, 1947.
20. The present applicant-petitioner-A.P.M.C. shall have to comply the order passed by this Court on 1st August, 2007 and petitioner shall have to pay current wages as directed by this Court which are available to the respondent-workman according to Minimum Wages Act or a fellow employee receiving current wages while working with the petitioner, the workman is entitled that much wages from the petitioner. See: 2004 (2) GLH 273 : 2003 (4) GLR 2841 Deva Gova v. District Panchayat.
21. Therefore, there is no substance in the present application. Accordingly, present application is disposed of.
Once the Labour Court has passed the award granting reinstatement with back wages, then, whatever the original terms and conditions in respect to workman either daily-rated or any other category that has gone and original order is nothing, but, employer shall have to implement the award passed by the Labour Court.