Calcutta High Court
Singer India Ltd. And Ors. vs State Of West Bengal And Ors. on 17 July, 1998
Equivalent citations: [1999(82)FLR504], (1999)ILLJ1009CAL
Author: Ruma Pal
Bench: Ruma Pal
ORDER Ruma Pal, J.
1. The respondent No. 3 was dismissed by the petitioner from service on June 9, 1989 with effect from June 16, 1989. By an award dated June 28, 1996, the Tribunal directed the petitioner's reinstatement with full back wages. The award was published on August 7, 1996.
2. The writ application which affirmed on March 4 , 1997 was filed on March 5, 1997 for being listed on March 10, 1997. The matter was taken up on July 2, 1997 when the writ petition was adjourned at the instance of both the parties.
3. The respondent No. 3 has filed an affidavit in which he had claimed that during this entire period he was employed in a small scale industry of his own in which he has got Rs.1,000/- per month. He has not disputed that the last pay drawn up was 3,850/-.
4. No affidavit-in-opposition has been filed disputing the facts stated by the respondent No. 3 by the writ petitioner. The only question raised by the petitioner is that the writ application should not be taken as pending for the purpose of 17-B until December 24, 1997 when an interim order staying operation of the award was passed.
5. It is argued that the employer could not be prejudiced by reason of the inability of the Court because of its business to take up the application for hearing.
6. I am unable to accept the submission of the writ petitioner. The work 'pending' has been used without any qualification under Section 17-B. A petition is pending before the court under Article 226, once it is filed. This Court does not have a procedure whereby an application under Article 226 is dependent upon admission. It is true that the matter may not be taken up by the Court by reason of the pressure of work or otherwise, nevertheless as between the employer and the employee, the delay on the Court's part cannot be attributed to the employee at least. Furthermore, it appears that when the matter came up on July 2, 1997 an adjournment was sought by both the parties including the writ petitioner. Finally, there is no evidence that the writ petitioner-employer had made any effort to have the matter listed and disposed of expeditiously by the Court.
7. For the above reason, the application under Section 17-B is allowed. The period of pendency is treated as March 5, 1997 up-to-date. The writ petitioner will pay the respondent No. 3 Rs. 2,850/- per month calculated in respect of the aforesaid period within four weeks from date.
8. As far as the writ application is concerned, the award has been challenged on two grounds :-
(1) That the Labour Tribunal had not considered relevant material before in arriving at the decision that the petitioner was workman.
(2) In particular, the petitioner had relied on the annexure to the letter of appointment which according to the award was not on the record.
9. This submission must be accepted in view of the fact that in another part of the very same award the Tribunal has referred to the annexure and in fact quoted a clause therefrom.
10. The second submission is that the Tribunal did not apply its mind to the question whether the respondent No. 3 was a workman before considering whether the respondent No. 3 fell within the exception to the definition of workman in Section-2(s) of the Industrial Disputes Act, 1947. Reliance is placed on the decision reported in (1995-I-LLJ-303)(SC) (H.R. Adyanthaya etc. v. Sandoz (India) Limited) in this context, where the earlier view expressed, inter alia, in the case of S. K. Verma was disapproved and held to be per incuriam. The view expressed in S.K. Verma was that if a person was not within four exceptions to Section-2(s), he was automatically a workman. According to the respondent No 3, the decision of S.K. Verma does not apply to West Bengal by reason of statutory amendment. The submission is disputed by the writ petitioner. It is not necessary to decide this issue which is left to be decided by the Tribunal.
11. For the reasons stated above, the writ application must be allowed. The impugned award is set aside. The Tribunal will reconsider the matter on the evidence before it after hearing the parties within a period of three months from the date of communication of this order.