Calcutta High Court
Carrit Moran And Co. Pvt. Ltd. vs State Of W.B. And Ors. on 20 June, 2007
Equivalent citations: 2007(4)CHN33, (2008)ILLJ19CAL
Author: Pranab Kumar Deb
Bench: Pranab Kumar Deb
JUDGMENT
1. This is an application under Section 5 of the Limitation Act, 1963 for condonation of delay of 3 days in preferring this appeal against the order dated 3rd May, 2007 passed in W.P. No. 1565 of 2006.
2. We have heard the learned Advocates for the parties. We have also examined the application under Section 5 of the Limitation Act. The delay has been sufficiently explained and the explanation given in the application is quite satisfactory and convincing.
3. The learned Advocate appearing for the respondent, in his usual fairness, does not oppose such prayer for condonation of delay.
4. Accordingly, we allow the application under Section 5 of the Limitation Act, being GA No. 1705 of 2007 and condone the delay as aforesaid. The certified copy of the impugned order is filed in Court today by the learned Advocate for the appellant which may be kept with the records.
5. There will be an order in terms of prayer (a) of application.
6. After hearing the learned Advocates for the respective parties, we are of the view that this appeal can be disposed of finally and accordingly, with consent of the learned Advocates for the respective parties, we take up the matter for final disposal.
7. This appeal is preferred against an order passed by the learned Single Judge of this Court dated 3rd May, 2007 in W.P. No. 1565 of 2006 thereby allowing the application filed by the workman under Section 17B of the Industrial Disputes Act, 1947. By the said impugned order the learned Single Judge directed the company/petitioner to pay the respondent/workman his last drawn wages from the date of filing of the writ petition, i.e. 27th September, 2006 till April, 2007 by 15th May, 2007. It was further directed that the company/ petitioner would go on paying such amount every month by 15th day of each month.
8. It is the contention of the learned Advocate appearing on behalf of the appellant/company that the relationship between employer and the employee could not be established by the workman in the present case. In the award itself there is a finding of the learned Tribunal that there is no material to make out that Sri Haider Ali was employed by the company or was paid his salary by the company under reference or otherwise was included as any of the employees in the establishment of the company. It is the contention of the learned Advocate appearing for the appellant/company that in absence of such material the learned Tribunal should not have passed the award. For the present, we do not want to go into the merit of the case so far as the award is concerned, because that is the subject-matter of challenge in the writ petition which is still pending hearing before the learned Single Judge.
9. It is submitted by the learned Advocate for the appellant with reference to Section 17B of the Industrial Disputes Act, 1947 that the provisions under the said section makes it clear that the employer shall be liable to pay such workman during the period of pendency of such proceeding in the High Court or the Supreme Court, "full wages last drawn by him".
10. He also refers to a decision of our High Court reported in 2004(2) CHN 390 (Hooghly Printing Co. Ltd. v. State of West Bengal and Ors.). It was held in the said judgment by the learned Single Judge of this Court that terms "full wages last drawn" are to be looked into from the angle as if the worker was in service, i.e., if the workman would have been in service, what he would have got as his wages, i.e., the amount what the workman would have taken home at the end of the month. It must be stated that the intent of the legislature is that on the date of termination, the amount towards wages which the petitioner could have got in hand or would have taken home towards the emolument that should be the "full wages drawn".
11. It is the contention of the learned Advocate appearing on behalf of the appellant that there is not a single scrap of paper to show that the workman received any amount of salary/wages from the company. It is further pointed out by the learned Advocate appearing on behalf of the appellant that there is no order of termination from the employment. In absence of such materials it becomes very clear that there is nothing to show that the workman was ever in any employment of the company.
12. Learned Advocate appearing for the workman submits that although there is no written order of termination of service and although there is no paper to show that such salary was drawn by the workman from the company, even then he is entitled to such relief under Section 17B of the Industrial Disputes Act, 1947 since he worked in the company as a driver.
13. We are unable to accept such contention as we have already said that there is no such paper to show that there was any relationship between employer and employee in the present case. In our considered view, the order of the learned Single Judge of this Court dated 3rd May, 2007, should be set aside. Accordingly, we allow the appeal and set aside the impugned order passed by the learned Single Judge of this Court without any order as to costs.
14. The original writ petition is still pending before the learned Single Judge, which will be disposed of accordingly at an early date.
15. Urgent certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.