Calcutta High Court (Appellete Side)
Ranbaxy Laboratories Limited vs State Of West Bengal And Others on 8 October, 2013
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELATE SIDE
Present:
Hon'ble Justice Sambuddha Chakrabarti
WP No. 10138(W) of 2011
Ranbaxy Laboratories Limited
Versus
State of West Bengal and Others.
For the petitioner : Mr. N. K. Mehta, Advocate
Mr. Soumya Majumder, Advocate
Mr. Sunny Nandy, Advocate
For the respondent : Mr. Supriya Bose, Advocate
Mrs. Amrita Sinha, Advocate
For the respondent no.3/
applicant : Mr. Saikat Banerjee, Advocate
Mr. Jasojeet Mukherjee, Advocate
Heard on : 03.12.2012, 10.01.2013, 05.06.2013,
07.06.2013, 10.06.2013, 12.06.2013
and 14.06.2013
Judgement on : 08.10.2013
Sambuddha Chakrabarti, J.:
An Award passed by the learned judge of the 2nd Labour Court Kolkata allowing the application under Section 10(1B)(D) of the Industrial Disputes Act is under challenge in this writ petition.
By the said Award the court below had declared that the petitioner was entitled to get reinstatement in service with only 50 per cent. back wages accrued in his favour from July 4, 2005 till his actual restatement. The order of termination has been set aside and the management of the writ petitioner company herein was directed to reinstate the applicant within a period of 60 days from the passing of the Award.
The short facts leading to passing of the Award is that the petitioner is a pharmaceutical company where the respondent no. 3 was appointed as a Medical Service Representative on November 8, 1993. Subsequently he was promoted to the post of District Manager. The agreements that were reached between the petitioner company as well as the respondent no. 3 inter alia provided that any dispute in relation to the termination of service of the petitioner was to be adjudicated upon in a forum within the territorial jurisdiction of Delhi. In other words, the respondent no. 3 had agreed to the ouster of territorial jurisdiction of other courts.
The petitioner has given a list of duties that the respondent no. 3 had to discharge as a District Manager and the tasks that he had to attend to from which the petitioner company alleged that the respondent no. 3 was holding an administrative and managerial post.
By a letter dated May 18, 2005 the respondent no. 3 was re-designated and he was instructed to operate from Guwahati as his headquarter. Since in spite of repeated warnings he did not join his new place of posting he was given a final opportunity by a letter dated June 20, 2005. Even thereafter he did not move. Therefore, his service was terminated by a letter dated July 4, 2005 with immediate effect as per the terms and conditions of employment. The respondent no. 3 thereafter filed an application under Section 10(B) of the Industrial Disputes Act before the 2nd Labour Court praying for full back wages and other benefits. The writ petitioner company contested the case by filing a written statement. Evidence was adduced by both the sides and by the Award impugned the learned judge of the court below had directed the reinstatement of the respondent no. 3.
As mentioned earlier this has been the subject-matter of challenge before this court.
The complexities of the problems involved in this writ petition can be appreciated from the issues raised by the labour court. Basically they related to whether the applicant before the labour court was a workman within the meaning of Section 2(s) of the Industrial Disputes Act and whether the court had territorial jurisdiction over the matter. The court below after considering the evidence on record, both oral and documentary, as well as the relevant provisions of law and the judgements referred to it, had answered both the issues in the affirmative. It further came to a conclusion that the management of the company had terminated the service of the respondent no. 3 herein without any enquiry or charge-sheet or show-cause notice and passed the Award accordingly.
Mr. Soumya Majumder, the learned advocate for the petitioner company has chiefly assailed the finding of the court below on those two issues. According to Mr. Majumder the concerned employee was neither a workman nor was the Government of West Bengal the appropriate government by reason of the forum exclusion clause in the appointment letter.
The finding of the court below that the respondent no. 3 was a workman, the petitioner submitted, was on an improper reading of the documents marked as exhibits. He had totally failed to prove that he was a workman. The company has referred to the duties he had to discharge. They have given a list of duties that the petitioner had to perform. These included guiding medical service representatives, controlling and supervising their functions, preparing their performance appraisal, recommending leave applications, approving expense statements, authority to work in Andaman etc. They have elaborated the submission about the nature of the duties as enumerated in the pleadings. For example, in the written statement filed by the writ petitioner herein in the court below it was mentioned that the petitioner was discharging the duties of supervisory nature or he was a District Manager and was in administrative and managerial post. The entire responsibility of the district was upon him. On him lay the task of directing the medical service representatives and planning and executing the policy for the purpose of achieving the self-targets. As a District Manager he even had the power of charge-sheeting or issuing show-cause notice to those representatives reporting to him.
According to the company these duties do not match with the duties of a workman. They have particularly mentioned to the fact that the employee was empowered to take disciplinary action and as such he cannot be called a workman. The court below without appreciating the true nature of the work discharged by the respondent no. 3 has arrived at a erroneous conclusion.
The respondent no. 3 in reply submits that he was initially appointed as a Medical Service Representative to work in a territory as might be assigned to him with Kolkata as the headquarter and when he was promoted to the post of District Manager with instruction to continue to work in the territory with Kolkata as the headquarter. According to the private respondent out of the 12 clauses mentioned in the letter of promotion 10 clauses were almost identical with those contained in the letter of appointment. Mr. Bose, the learned advocate for the private respondent has referred to clause 5 of the letter of promotion which spoke of applicability of the Workmen's Compensation Act, 1923 in case there was any personal injury caused to him by accident while engaged on duty.
The private respondent has referred to the deposition of the witness appearing on behalf of the writ petitioner, i.e., Purusattam Nair who in cross-examination has admitted that the next promotional post after the Medical Service Representative is the District Manager in the company. This along with the appraisal reports which have been annexed to the writ petition make it clear that the next level to which he was promoted was not a managerial one.
The learned judge of the court below had rightly placed the onus upon the private respondents herein to prove that he was a workman. He has referred to the statements made by him in examination-in-chief wherein he has specifically stated that he had no authority to control his teammates or he had no authority to take any action against an absentee or was not empowered to participate the decision making policy of the company. He further stated in his examination-in-chief that for the purpose of sales promotion he had to undergo field work and outdoor duties. Managerial duties, he said, was assigned from the designation of Regional Manager. He specifically mentioned that he had no authority to initiate any disciplinary action against any team member. It was only the regional managers who were empowered to take disciplinary actions against a member of the team. It may be mentioned that the specific allegations made by the respondent no. 3 were not contradicted by the company by way of a cross-examination. When a statement made in examination-in-chief is not tested by way of a cross-examination the statements must be deemed to have been accepted by the opposite party. In the case of A. E. G. Carapiet - Vs.- A. Y. Derderian, reported in AIR 1961 Cal 359, a division bench of this court had held that whenever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. This is not merely a technical rule of evidence. It is a rule of essential justice.
Mr. Majumder, however, laid more stress on the documentary evidence to prove that the private respondent was not a workman to counter the lack of cross-examination by the company. He has referred to a very well-settled principle of law that where there is documentary evidence oral evidence is not entitled to any weight. He also referred to several documents which were marked exhibits before the labour court, e.g., performance appraisal of other employees, leave applications, expense statement of the Medical Service Representatives and such other documents. According to the company the fact that the petitioner used to sign the performance appraisal of different employees clearly goes to show that he was not after all discharging any duty of a workman. Several such documents have been annexed to the writ petition in support of the contention that the petitioner was occupying a managerial post.
But the submission of the respondent no. 3 appears to have sufficient substance that he was merely an appraiser and not the reviewer of the performance of the Medical Service Representatives. In his application before the labour court the private respondent clearly stated that he had an individual territory in Andaman and Nicober Island as a workman because no manager in pharmaceutical industry had any individual territory. Mr. Bose has taken me through the written statement filed in the court below where this allegation has not been controverted. Again in the examination-in-chief the private respondent as PW-1 has very specifically stated that he was assigned his duties singly for sales promotion in the territory of Andaman and Nicober Islands.
The OPW-1 Mr. Nair in his examination-in-chief as well as in the cross-examination had described the private respondent as a workman. From this Mr. Bose submitted that this was an admission on the part of the company on the status of the private respondents.
The private respondent has taken a further point that his appointment as a District Manager was a mere change of nomenclature without any substantial change and was not to be counted as a promotion per se. This was designedly done to prevent him from doing trade union activities.
He has taken a very specific point that after the Industrial Disputes (West Bengal 2nd Amendment) Act, 1980 and the Industrial Disputes (West Bengal Amendment) Act, 1986 a person doing work in sales promotion falls within the definition of workman and he has a remedy available under the Industrial Disputes Act for the redressal of his grievances. Thus he argues that if the private respondents were engaged in any work relating to sales promotion he clearly qualified to be considered as a workman without anything more as the promotion of sales has been brought within the definition of workman in the Industrial Disputes Act.
The learned judge of the court below had rightly observed that the management of the company could not produce a single document whereform it would appear that the private respondent was ever appointed into any managerial work. While the onus initially is on the employee to prove that he is a workman when, however, the employer takes a point that the duties attached to his office are managerial in nature the onus clearly shifts to the company to prove that he was discharging supervisory and managerial duties. In this regard the company failed to discharge the shifted onus.
It cannot be denied that in the promotion letter the provisions of the Workmen's Compensation Act was made applicable to the petitioner which raises an unrebuted presumption that the company has accepted him as a workman otherwise there would not have been any question of making the said Act applicable to him. The learned judge of the court below had further observed, and quite rightly, that the leave application forms were signed by the private respondent merely as a recommending authority, but not as a sanctioning authority. The learned judge of the court below had taken all the aspects into consideration including what the discharge of managerial duty callsedfor and has come to a conclusion that the company was unable to show that the applicant was discharging the duties as a manger having the authority to appoint, promote, sanction leave or taking disciplinary action or exercising an independent decision making power.
On the contrary the private respondent has been able to satisfy that he was discharging his duty as a workman, irrespective of his designation. These findings are based on evidence, both documentary and oral. The presumption drawn by the court below is valid and there is nothing to interfere with the finding arrived at on the point. It is a settled principle of law that a finding arrived at by a tribunal after considering the evidence on record is not to be lightly interfered with by the High Court exercising writ jurisdiction unless such finding is absolutely perverse, i.e., finding arrived at without any evidence or non-consideration of material evidence on record or is such that no man of ordinary prudence would arrive at the same after consideration of the evidence on record. Needless to say the order impugned does not suffer from any such infirmity on this particular point to call for any judicial interference.
Mr. Majumder, the learend advocate for the petitioner has referred to the cases of Mukesh K. Tripathy -Vs.- Senior Divisional Manger, LIC and Others, reported in (2004) 8 SCC 387and Sonepat Cooperative Sugar Mills Limited -Vs.- Ajit Singh, reported in (2005) 3 SCC 232 for a proposition that to acquire the status of a workman one must be working in any of the capacities mentioned in Section 2(S) of the Industrial Disputes Act. And it is for the workman to prove his status.
Mr. Majumder next relied on the case of Honkong & Sanghai Bank Corporation Limited -Vs.- Central Government Industrial Tribunal at Calcutta and Others, reported in 2006(4) CHN 146 where it has been held that there is no straightjacket formula to determine whether a person is a workman or not. Exercise has to be taken to find out the reality. The fact whether a man is a workman or not is a jurisdictional fact and the question goes to the root of the jurisdiction of the learned tribunal and the High Court in exercise of writ jurisdiction can go into such questions. This is a very well settled principle of law and endeavour has been taken to find out the reality. It is only because there is no straightjacket formula that so many aspects touching on the duties of the private respondent had to be considered and examined.
The petitioner next relied on the case of Mc Leod and Company -Vs.- Sixth Industrial Tribunal, West Bengal and Others, reported in AIR 1958 Cal 273 wherein a learned single judge of this court had held that a workman can be doing a supervisory work and still remain a workman within the definition of Section 2(s) of the Industrial Disputes Act. While considering the exclusion of an employee mainly employed in managerial work or administrative capacity it was held by this court that the person had to be employed 'mainly' in managerial or administrative capacity. In other words his main work must be managerial or administrative. This judgement, as will appear from the discussion above, has no application to the facts of the case inasmuch as from the evidence adduced before the court below it cannot be said that the respondent no. 3 was discharging managerial or administrative duty mainly.
In the case of Aloysius Nunes -Vs.- Thomas Cook India Limited, reported in 2000(11) CLR 649 the High Court at Bombay had occasion to consider the different tests that can be applied to find out whether the person in employed in a managerial or administrative capacity. The petitioner referred to the test applied by the said High Court that for a person to be an officer (managerial or administrative) another test necessary to be established would be whether he occupies a position to command or decide and is authorized to act in certain matters within the limits of the authority given to him without the sanction of manager or the supervisor. In spite of referring to these tests the petitioner did not endeavour to establish how could have any application to the facts of the present case with reference to the duties discharged by the respondent no. 3.
The judgement of the Bombay High Court in a sense goes against the petitioner itself. A very important test applied to determine the issue whether a person is a workman or not the court held that a manager must be in a position to give orders and see that the work is done. He must have the powers to lay down the norms, to direct that the work be done in terms of those norms, power to take disciplinary action and where application for leave is made to sanction or reject those applications. This court has already found that the duties of the respondent no. 3 goes nowhere near it. The respondent no. 3 did not have the power to take any decision. All that he could do was to recommend leave of some employees attached to him but did not have the authority to sanction the same.
Mr. Majumder next relied on another judgement of the Bombay High Court in the case of German Remedies Limited - Vs.- Michael Gabriel Lopes and Another, reported in 1999 Lab IC 1208 to argue that the power to take disciplinary action is not the only criteria in adjudging if an employee could be classed as a workman. Although there is perhaps no dispute with this proposition this judgement also does not factually apply to the present case inasmuch as it has been found by the court that in view of the duties performed by the respondent in that case he could not be termed as a workman. The work that was done by him did not show that he was doing any mechanical or clerical work. He in fact did liaison work with government offices, issue gate passes to workers, certify overtime done by the workers and was authorized to sanction the leave applications of the workers. Thus the duties discharged by the respondent no. 1 are factually different from the present one.
Mr. Majumder next relied on the case of S. K. Maini -Vs.- M/s. Carona Sahu Company Limited and Others, reported in 1994 (L&S) 776 for a proposition that the power to appoint and discharge other employees is not a necessary ingredient of managerial duties. The issue is not so much whether any particular act constitutes a necessary ingredient of the managerial function. The question on the other hand is whether the overall acts discharged by the respondent no. 3 could be classified as managerial in nature. I find, this judgement also helps the contention raised by the respondent no. 3 inasmuch as it holds that the determinative factor is the main duty of the employee concerned and not some work incidentally done. If the main work is of manual, clerical or technical in nature the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works will not make his job outside the purview of workman as defined in Section 2(s) of the Industrial Disputes Act.
The case of Subir Guha Thakurta -Vs.- Johnson & Jhonson Limited and Others, reported in 2006(4) CHN 459 has been relied on by the petitioner in support of the contention that the onus is on the employee to prove whether he is a workman or not. The point is very well settled and this principle has been rightly applied by the court below.
In the case of Jhonson & Jhonson Limited -Vs.- Third Industrial Tribunal, West Bengal and Others, reported in 2005(3) CHN 608 a learned single judge of this court had held that as the person concerned assessed the performance of the Medical Service Representatives for development of the business and suggestions were given to the higher authority for taking a decision on this point it was difficult to accept the view of the learned judge that as he was not taking any decision by himself he is neither an administrative nor a managerial staff. This case again factually differs from the one in hand. In the reported case the employee concerned assessed the performance of the Medical Service Representatives and suggestions were given for taking decision on this point. Moreover the court below in that case had itself held that the principal duty of the employee concerned was to organize and develop the business of the company. Therefore, the learned judge of the court below in that case drew an inference based on the facts which is not available in the preset case.
Again the case of Pustak Mahal Publishers -Vs.- Hardwari Lal Sharma, reported in 2013 LLR 204 was referred to by the petitioner for a proposition that a Sales Manager is not a workman when he is signing the attendance register as a manager. This case does not apply to the facts of the present one inasmuch as the respondent in that case had admitted in the cross-examination that he was performing the duties of a Sales Manager by signing the relevant documents. It was proved in that case from the evidence adduced by the witnesses on behalf of the management that he was the head of the sales department. Sales representatives were under his direct control and supervision. He used to sign pay slips. The jobs performed by the respondent in that case do not in any way match with the duties of the present respondent no. 3 making the principle decided therein inapplicable to the facts of the present case.
The respondent no. 3 has referred to the case of Andhra Scientific Co. Ltd. -Vs.- A. Seshgiri Rao and Another, reported in AIR 1967 SC 408. In that case the Supreme Court held that when a labour court has on consideration of the evidence comes to the conclusion as regards the functions that were actually being performed by an employee that he comes within the definition of a workman the High Court will not interfere under Article 226 of the Constitution of India except in cases where there is a clear error on the face of the record. Functions that are actually performed by an employee are questions of fact. It has already been found that the finding on the status of the respondent no. 3 by the labour court does not contain any error, far from the one on the face of the record. As such the same cannot be assailed in a proceeding under Article 226 of the Constitution of India.
In the case of Ananda Bazar Patrika (P) Ltd. -Vs.- The Workmen, reported in 1970(3) SCC 248 the question arose whether one employee was a clerk or functioned in a supervisory character. The Supreme Court held that the principal work of the employee was clerical in nature. Being the senior most clerk he was put in charge of the provident fund and was given a small amount of control over other clerks or workers in the section. For example he was permitted to recommend their leave applications, to allocate works etc. These minor duties of supervisory character cannot convert his office of senior clerk to that of supervisory in nature. In a sense this case applies to the facts of the present one as it will equally appear from what has been discussed before that what the respondent no. 3 was discharging basically satisfied the criteria of the works done by a workman and some marginal discharge of control over other employees did not make him occupying a managerial or a supervisory post.
The other aspect that was informed in the present writ petition was with regard to the jurisdictional issue, i.e., whether the Government of West Bengal could be the appropriate government by reason of the forum exclusion clause in the appointment letter. The petitioner referred to the appointment letter issued to the respondent no. 3 which has been annexed to the writ petition as Annexure P-2. In clause 12 thereof it was provided that any dispute arising between the company and the employee with regard to the interpretations of the letter of appointment or in the matter with regard to appointment, termination or dismissal and with regard to any claim or payment or damages shall only be dealt with and adjudicated upon by the courts functioning in Delhi.
The petitioner company had also taken this point before the labour court as well that the labour court had no jurisdiction to adjudicate upon the proceeding because in terms of the conditions stipulated in exhibits L and M it was only the Delhi court that had the jurisdiction to entertain and adjudicate the issue. It was argued that the respondent no. 3 after having knowingly accepted the terms of employment could not file this application before the labour court in Kolkata.
The respondent no. 3 before the court below had justified the filing of the application here as he was appointed by the Kolkata office and as his principal duty was in Kolkata, his salaries were disbursed from the Kolkata office, the day to day work and orders relating thereto were issued from here etc. The court below after considering the definition of 'appropriate government' and the evidence on record and the rival contentions held to have jurisdiction to entertain that proceeding.
The petitioner here contends that it was permissible for the parties to exclusively choose a forum for the purpose of jurisdiction and in terms of the agreement it was only the forum in Delhi that could adjudicate the dispute.
This submission of the petitioner does not appear to be a very valid one. Although the respondent no. 3 had argued that no issue was framed in respect of the forum selection clause that is not very relevant in the present context. When the parities went to the trial with their knowledge about the issues they would have to answer from the pleadings, mere non-framing of an issue is not fetal. In support of his contention Mr. Bose, the learned advocate for the private respondent has referred to the various factual aspects establishing that the labour court in Kolkata had the jurisdiction. The stand taken by the private respondent with regard to the factual aspects of the territorial jurisdiction are the same as taken by him before the court below. They need not be repeated.
It appears that the cause of action had arisen in Kolkata exclusively and no part of it arose in Delhi. Moreover the point of jurisdiction not having been taken at the earliest the writ petitioner had submitted to the jurisdiction of the labour court. Reference may be made to the case of Koopilan Uneen's Daughter Pathumma and Others -Vs.- Koopilan Uneen's Son Kuritalan Kutti, Dead by LRs and Others, reported in AIR 1981 SC 1683 wherein the Supreme Court had held that in order with an objection to the place to suing may be entertained by an appellate or revisional court fulfillment of three conditions is necessary. 1) the petition was taken in the court of first instance,
2) it was taken at the earliest opportunity and in cases where issues are settled at or before such settlement and 3) there has been a consequent failure of justice. All these three conditions must exist. It cannot be said that in the present case either of these conditions was satisfied.
This court also finds sufficient merit in the submissions of the private respondent that merely agreeing to a place for adjudication will not confer any authority on the same to try the dispute. Once it has been held that Delhi Court did not have any jurisdiction and the petitioner company has also failed to satisfy how the court in Delhi could be said to have any jurisdiction a mere agreement between the parties could not be resorted to as excluding the jurisdiction of the Kolkata court. It is a well settled principle of law that consent does not confer jurisdiction on a court which otherwise lacks jurisdiction to try it.
Mr. Bose has also submitted that the forum exclusion clause operated harshly and was imposed upon the private respondent by dint of a superior bargaining power that the petitioner always enjoyed being the employer and the court should be very reluctant to uphold the same. In this connection he referred to the case of Central Inland Water Transport Corporation Limited and Another -Vs.- Brojo Nath Ganguly and Another, reported in AIR 1986 SC 1571. The Supreme Court had recognized that there can be unreasonableness or lack of fairness in a contract or a clause in a contract where there is inequality of bargaining power between the parties although arising out of circumstances not within their control or as a result of situations not of their creation. The Supreme Court further held that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract or an unfair and unreasonable clause of a contract entered into between the parties who are not equal in bargaining power. One of the factors mentioned as an instance of the difference in bargaining powers was the great disparity of economic strength of the contracting parties. It will also apply to situations in which the weaker party can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or to go without them. This is a case where the respondent can be said to have hardly any choice than to accept the terms of forum selection clause as imposed by his employer company. The two were at uneven bargaining strength.
I find thus no infirmity in the finding of the learned judge of the labour court on this point.
The only other point taken by the petitioner was with regard to the back wages granted by the court below in spite of the fact that there was no pleading or statement of unemployment by the respondent no. 3 after the termination. Therefore, the onus of pleading that he remained unemployed was not discharged by the private respondent. In support of his contention the petitioner relied on the case of Reetu Marbels - Vs.- Prabhakant Shukla, reported in 2010(2) SCC 70 for a proposition that payment of full back wages upon the order of termination being declared illegal cannot be granted mechanically. It does not automatically follow that reinstatement must be accompanied by payment of full back wages even for the period when the workmen were not out of service and contributed little or nothing to the industry. The Supreme Court had also held in the case of Hindustan Tinworkers (P) Ltd. -Vs.- Employees, reported in (1979) 2 SCC 80 that ordinarily a workman whose services had been illegally terminated would be entitled to full back wages except to the extent when he was gainfully employed during the enforced idleness. That is the normal rule.
Mr. Bose appearing for the private respondent has submitted that it is not for the High Court to go into the factual aspect of the matter and payment of back wages has a discretionary element involved in it and there is no straightjacket formula for the grant of it. In support of his contention he has referred to the cases of Kendriya Vidyalaya Sangathan and Another -Vs.- S. C. Sharma, reported in 2005(2) SCC 363 and U. P. State Brassware Corpn. Ltd. And Another -Vs. Uday Narayan Pandey, reported in AIR 2006 SC 586.
It may be mentioned that while disposing of the application under Section 17B of the Industrial Disputes Act this court had found that the allegation made by the private respondent in the said application that from the date of termination of his service he had not been gainfully employed elsewhere and was not getting any financial benefit from any quarter, was incorrect and he had virtually admitted subsequently that he was on employment after his termination of service, even if for a short period. That application was disposed of by directing the petitioner to pay to the private respondent a sum equivalent to the wages last drawn by him from the date of the institution of the writ petition till the disposal of the application along with a direction to pay for the current months beginning from January, 2013 at the same rate. I have been informed that in an appeal taken from the said order the appellate court did not interfere with the direction of this court with regard to the payment for the current period but directed that payment for the earlier period shall be decided at the time of disposal of the writ petition.
In such view of it I am of the view that the direction given by the court below to reinstate the respondent no. 3 with 50 per cent. back wages accrued in his favour with effect from July 4, 2005 till the actual reinstatement of his service is required to be modified. The order of termination which was found to be unjust and illegal by the court below is hereby upheld. The respondent no. 3 is entitled to get the reinstatement in service but without any back wages from the date of his termination from service, i.e., July 4, 2005. But I, however, direct the petitioner to pay the amount which was directed to be paid while disposing of the application under Section 17B of the Industrial Disputes Act in view of the specific finding that the liability of the employer to make the payment under Section 17B of the Act is only during the pendency of the proceeding in the superior court and as such the question of employment of the respondent no. 3 before the Award was passed or at any point of time before the writ petition was filed is not a relevant consideration for the court while disposing of an application under Section 17B of the Act. There shall be a direction for making payment at the rate of the wages last drawn by the respondent no. 3 from the date of the institution of the writ petition since the petitioner could not establish that during the pendency of this petition he was employed at any establishment.
With this the writ petition is disposed of. The Award passed by the Second Labour Court is modified to the extent indicated above.
There shall, however, be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.
(Sambuddha Chakrabarti, J.) S. Banerjee