Calcutta High Court (Appellete Side)
The Statesman Limited vs The State Of West Bengal & Ors on 4 March, 2025
S/L 9+10
04.03.2025
Court. No. 551
Sourav
WPA 5573 of 2016
With
CAN 1 of 2016 (Old No. CAN 3496 of 2016)
With
CAN 2 of 2016 (Old No. CAN 3497 of 2016)
With
CAN 3 of 2024
The Statesman Limited
Vs.
The State of West Bengal & Ors.
With
CRR 1719 of 2024
Swapan Kumar Das
Vs.
State of West Bengal & Anr.
Mr. Soumya Majumder, Sr. Adv.
Mr. Sakabda Roy
Ms. Supriya Ranjan Saha
... for the petitioner in WPA 5573 of 2016
and for the respondent in CRR 1719 of 2024.
Mr. Anirban Kar Mr. Munshi Ashiq Elahi Ms. Snigdha Das Mr. Rohit Mahato ... for the respondent no. 3 to 7 and 10 in WPA 5573 of 2016 and for the petitioner in CRR 1719 of 2024.
Mr. Barnamoy Basak Mr. Ajitesh Pandey ... for the respondent no. 8.
In Re: CAN 1 of 2016 (Old No. CAN 3496 of 2016) With CAN 2 of 2016 (Old No. CAN 3497 of 2016)
1. These two application have been preferred by the respondent nos. 5 and 3 respectively, namely; Surya Bhan Pandey and Ashok Kumar Pandey seeking relief under Section 17B of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the said Act' in short).
2
2. By filing the instant two petitions, the aforementioned two respondents have prayed for an appropriate order directing the writ petitioner to disburse the last drawn wages of the said respondents from the date of filing of the instant writ petition till disposal of the same in favour of the said respondents.
3. In support of the instant two petitions, Mr. Kar, learned advocate appearing on behalf of the respondent nos. 3 and 5 at the very outset draws attention of this Court to the Order No. 184 dated 07.08.2014 as passed in connection with the Case No. 01/2003/33(2)(b) (M/s. Statesman Limited Vs. Their Workmen) by the learned Judge, 1st Industrial Tribunal, Kolkata. It is submitted by Mr. Kar that from the said order dated 07.08.2014, it would reveal that the said Tribunal dismissed the writ petitioner's application under Section 33(2)(b) of the said Act. It is thus, submitted by Mr. Kar that by the order under challenge, the said Tribunal thus did not accord to the prayer as made by the writ petitioner/company towards dismissal of the respondents of the present writ petition.
4. In his next limb of submission, Mr. Kar draws attention of this Court to the provision of Section 17B of the said Act. It is submitted by Mr. Kar that from the provision of Section 17B of the said 3 Act, it would reveal that it is the intention of the legislature that in any case, a labour Court, a Tribuanl or a National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceeding against such award in the High Court, the employer is duty bound to pay to such workman during the pendency of such proceeding in the High Court full wages last drawn by him inclusive of any maintenance allowances admissible to him under any rule in the event, the workmen have not been employed in any establishment during such period and to that extent, an affidavit has been filed by such workmen in such Court.
5. Drawing attention to the instant two petitions under consideration, it is submitted by Mr. Kar that from the pleadings as made in the instant two petitions, it would reveal that both the respondent nos. 3 and 5 had categorically averred that after their dismissal from the writ petitioner/company, they were not in any gainful employment anywhere and they are leading their life in a miserable condition.
6. In course of his submission, Mr. Kar also places reliance upon a Full Bench judgment of the Hon'ble Apex Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Vs. Ram Gopal Sharma & Ors. reported in 2002 (2) SCC 244. It 4 is submitted by Mr. Kar that in the said reported decision of Jaipur Zila Sahakari Bhoomi Vikas Bank (Supra), the Hon'ble Apex Court came to a finding that when an order of dismissal is passed by a Labour Court in relation to an application under Section 33(2)(b) of the said Act, it tantamounts to non-approval to the order of dismissal as sought for by the employer and thus, there is no need of passing a separate or specific order for reinstatement. It is thus, submitted by Mr. Kar that it is a fit case for allowing the instant two applications and an appropriate order/orders may be passed in terms of the prayer as made in the instant two applications.
7. Per contra, Mr. Roy, learned advocate appearing on behalf of the writ petitioner/company while opposing such prayers also draws attention of this Court to the provision of Section 17B of the said Act. It is submitted by Mr. Roy that the provision of Section 17B of the said Act makes it clear that an employer's liability to pay to his workman full wages last drawn by him arises only when a Labour Court/Tribunal/National Tribunal by its order directs reinstatement of any workman. It is further submitted on behalf of the writ petitioner/company that from the order under challenge dated 07.08.2014, it is absolutely clear that though the learned Tribunal has not 5 allowed the petitioner's application under Section 33(2)(b) of the said Act but in the said order, no specific order for reinstatement of the private respondents have been passed.
8. In course of his submission, Mr. Roy draws attention of this Court to Section 2(b) of the said Act which defines the award. He also draws attention of this Court to Section 10A of the said Act which deals with voluntary reference of disputes to arbitration. It is thus submitted on behalf of the writ petitioner that on conjoint perusal of the aforementioned provisions of the aforementioned three sections of the said Act, it reveals that the respondent nos. 3 and 5 have miserably failed to make out a case for obtaining a relief as contemplated under Section 17B of the said Act.
9. On careful consideration of the entire materials as placed before this Court, if I look to the order under challenge dated 07.08.2014, it would reveal that by the said order the said Tribunal dismissed the writ petitioner/company's application under Section 33(2)(b) of the said Act holding the same is not maintainable and thus declined to grant approval as sought for by the writ petitioner/company towards the dismissal of the private respondents. Admittedly by the said order, the said Tribunal did not pass any award in 6 favour of the private respondents of the instant writ petition.
10. In the reported decision of Uttaranchal Forest Development Corporation & Anr. Vs. K. B. Singh & Ors. reported in 2005 (11) SCC 449, the Hon'ble Apex Court while dealing with the subject of Section 17B of the said Act, express the following view:
"2. The benefit of Section 17-B of the Industrial Disputes Act, 1947 by directing reinstatement in service or payment of last wages drawn in lieu thereof can be granted only in favour of such workmen who have obtained awards in their favour from the Industrial Tribunal/Labour Court and in support of their claims filed affidavits. Learned counsel for the employer states that such workmen who had directly approached by writ petitions to the High Court for seeking relief of reinstatement, cannot be granted benefit of Section 17B of the Industrial Disputes Act as there was no evidence before the Tribunal or the Labour Court about their non-employment or gainful employment elsewhere after discontinuance of their services."
11. On conjoint perusal of the provision of Section 17B of the said Act and the aforementioned paragraph of the reported decision of Uttaranchal Forest Development Corporation & Anr. (supra), it appears to this Court that 7 there cannot be any ambiguity that for preferring an application under Section 17B of the said Act, there is a precondition that an award has been passed in favour of a workman.
12. At this juncture, this Court also proposes to look to the relevant portion of the reported decision of Jaipur Zila Sahakari Bhoomi Vikas Bank (Supra), wherein the Hon'ble Apex Court express the following view:
"14. Where an application is made under Section 33(2)(b) proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if the order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking Section 33(2)(b) dismissing or discharging an employee brings an end of relationship of the employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end de jure only when the authority 8 grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of a separate or specific order for his reinstatement......." (emphasis supplied by me)
13. On careful scrutiny of the relevant portion of the judgment as passed in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank (Supra), it thus appears to this Court it has been held by the Hon'ble Apex Court that in the event, an application under Section 33(2)(b) of the said Act as filed by the Management is not considered favourably by a Tribunal thereby refusing to grant approval to the proposal for dismissal of the employee, the only consequence flows therefrom is that the concerned employee is deemed to have continued in service entitling him to all the benefits available. The Hon'ble Apex Court went further in holding that such being the position that there is no requirement for passing of a separate or specific order for his reinstatement.
14. Such being the position and keeping in mind the dictum of the Hon'ble Apex Court in the case of 9 Jaipur Zila Sahakari Bhoomi Vikas Bank (Supra), this Court considers that for entertaining the instant two applications, no separate award is required to be passed by the Tribunal, especially when, the said Tribunal rejects an application under Section 33(2)(b) of the said Act.
15. On perusal of the two petitions under consideration, it reveals that both the respondent nos. 3 and 5 stated on oath that after their alleged illegal dismissal from service, they are passing their dues with extreme financial hardship and they are not gainfully employees anywhere till date which was not controverted by filing any affidavit-in-opposition by the writ petitioner/company though such liberty was given to the writ petitioner/company but the writ petitioner/company did not avail such opportunity for the reasons best known to him.
16. This Court thus finds sufficient merits in the instant two applications and those deserve to be allowed.
17. In course of hearing, it is made known to the Court that during the pendency of the instant writ petition, the respondent no. 3 has attained his age of superannuation on the last day of May, 2018 while the other respondent no. 5 has not attained the age of his superannuation. 10
18. Such being the position, this Court while allowing the instant two applications directs the writ petitioner/company to pay the last drawn wages at the rate of Rs. 6868.34 to the respondent no. 3 from the date of filing of the instant writ petition till May 30, 2018 and the writ petitioner is further directed to pay at the rate of Rs. 6989.08 to the respondent no. 5 from the date of filing of the instant writ petition till date and thereafter month by month by the 7th day of each succeeding month and so on till disposal of the instant writ petition.
19. It is made clear that all arrear payments are to be cleared in four equal installments after adjusting the previous payments, if therebe any, and the arrear payments are to be cleared positively by the last day of June, 2025.
20. With the aforementioned observations, the applications being CAN 1 of 2016 (Old No. CAN 3496 of 2016) and CAN 2 of 2016 (Old No. CAN 3497 of 2016) are disposed of.
21. It is, however, made clear that the observation as made hereinabove, is purely limited for dismissal of the instant two applications and same shall have got no bearing for the disposal of the instant petition on its merit.
In Re: WPA 5573 of 2016 11
1. The supplementary affidavit as filed in Court today on behalf of the respondent no. 3 is taken on record.
2. It is reported by the ACO of this Court that CAN 3 of 2024 is not traceable in the file.
3. In view of such, department is directed to search out the interlocutory application being CAN 3 of 2024 and to tag the same with the instant file.
4. Department is further directed to submit a report as to whether the said application being CAN 3 of 2024 is still pending or not on the adjourned date.
5. Let the matter be listed under the heading "Writ Petition" in the Combined Monthly List of August, 2025.
6. Liberty to mention.
(Partha Sarathi Sen, J.)