Karnataka High Court
Mr Kamaraju P vs M/S Hinduja Global Solutions Ltd on 3 June, 2022
Author: Alok Aradhe
Bench: Alok Aradhe
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JUNE 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MS.JUSTICE J.M. KHAZI
W.A. NO.1092 OF 2021 (L-RES)
IN
W.P.No.43060 OF 2019 (L-RES)
BETWEEN:
MR. KAMARAJU .P
AGED ABOUT 46 YEARS
S/O PONNEGOWDA
R/AT NO.13 4TH C MAIN
MUNESHWARA BLOCK
LAGGERE, BENGALURU 560 058.
... APPELLANT
(BY MR. S.P. RAMESHA, ADV.,)
AND:
M/S. HINDUJA GLOBAL SOLUTIONS LTD.,
CORPORATE OFFICE SITUATED AT NO.690
GOLD HILL SQUARE PARK
FIRST FLOOR, BOMMANAHALLI
HOSUR ROAD, BENGALURU 560 068.
... RESPONDENT
(BY MR. GANAPATHY HEGDE, SR. COUNSEL FOR
MRS. PRIYA KALE, ADV.,)
---
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED
26.07.2021 PASSED BY THE LEARNED SINGLE JUDGE ON
I.A.1/2020 IN WP NO. 43060/2019 (L-RES) AND CONSEQUENTLY
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ALLOW THE I.A.NO.1/2020 IN WRIT PETITION NO.43060/2019
(L-RES) IN THE INTEREST OF JUSTICE AND EQUITY.
THIS W.A. COMING ON FOR PRELIMINARY HEARING, THIS
DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:
JUDGMENT
Mr.S.P.Ramesha, learned counsel for the petitioner. Mr.Ganapathy Hegde, learned Senior counsel along with Miss Priya Kale, learned counsel for the respondent.
This intra Court appeal has been filed against the order dated 26.07.2021 passed by the learned Single Judge by which the application preferred by the appellant under Section 17-B of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act' for short) was dismissed.
2. Facts leading to filing of this appeal briefly stated are that the appellant joined employment of the respondent - Company on 04.01.2001 as a Claim Processor. Thereafter, he was elevated to the position of Group Leader w.e.f. 01.04.2004. The appellant's services were terminated by the respondent - Company. Being aggrieved, the respondent initiated the proceedings under the Act. The Labour Court, by an award dated 25.07.2019, directed reinstatement of the 3 services of the appellant and further directed the respondent to pay 35% of the backwages to the appellant.
3. The respondent challenged the award passed by the Labour Court in a writ petition. In the said writ petition, the appellant filed an application under Section 17-B of the Act seeking payment of wages during the pendency of the writ petition. The respondent filed objections in which inter alia it was pointed out that the appellant is gainfully employed. In support of aforesaid submissions, whatsapp chat of the appellant was annexed.
4. The learned Single Judge, however, by an order dated 26.07.2021, dismissed the application under Section 17-B of the Act inter alia on the ground that the appellant, without any protest, accepted the settlement of Rs.2,41,697/- and had voluntarily resigned from the employment. In the aforesaid factual background, this appeal has been filed.
5. Learned counsel for the appellant submitted that the learned Single Judge grossly erred in rejecting the application 4 under Section 17-B of the Act. It is further submitted that the respondent had merely produced the screenshots of whatsapp chat of the appellant and the same does not constitute proof of gainful employment and therefore, the appellant is entitled to backwages. In support of aforesaid submissions, reliance has been placed on the decisions of the Supreme Court in 'TODI INDUSTRIES LTD. Vs. UNION OF INDIA AND OTHERS' (1999) 9 SCC 230 as well as Division Bench decision of this Court in W.A.No.3123/2014 dated 15.04.2015.
6. On the other hand, learned counsel for the respondent has pointed out that the appellant even in his cross-examination before the Labour Court, did not deny the whatsapp chat and screenshot of whatsapp chat of the appellant with one of the employees of the respondent which clearly demonstrated that the appellant is gainfully employed. Therefore, the appellant is not entitled to backwages under Section 17-B of the Act.
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7. We have considered the submissions made on both sides and have perused the record. Section 17-B of the Act reads as under:
"17B. Payment of full wages to workman pending proceedings in higher courts.- Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full 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 an affidavit by such workman had been filed to that effect in such Court: Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be."6
Thus, from perusal of the aforesaid provision that an employee is entitled to backwages if the award terminating reinstatement of his services is challenged by an employer in the High Court or Supreme Court. However, the aforesaid provision further mandates that the workman could not be employed in any establishment during the period and an affidavit to such effect should be filed.
8. Though in the affidavit the appellant had asserted that he is not gainfully employed, yet the respondent in the objection in paragraph 10, had stated that the appellant had started his own enterprise and is gainfully employed. In support of aforesaid averment, whatsapp chat of the appellant with one of employees of the respondent - Company was annexed. The appellant has not denied the whatsapp chat between him and the employee of the Company. Thus, it is evident that at the relevant time, the appellant was gainfully employed. Therefore, he is not entitled to backwages under Section 17-B of the Act.
9. Sofar as reliance placed by the appellant on the decision of the Supreme Court in TODI INDUSTRIES LTD. 7 supra is concerned, suffice it to say that the aforesaid case is an authority for the proposition that the Court has no jurisdiction to direct non-compliance of Section 17-B of the Act. However, the condition precedent for passing an order under the provision is fulfilled. Similarly, in the Division Bench judgment of this Court dated 15.04.2015, the application under Section 17-B of the Act was rejected on the ground that the matter can be heard out of turn. Therefore, the aforesaid decisions have no application to the obtaining factual matrix of the case.
For the aforementioned reasons, though we do not agree with the reasoning given by the learned Single Judge, yet the conclusion arrived at, is affirmed.
In the result, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE RV