Calcutta High Court (Appellete Side)
Central Bank Of India vs Sanjay Sutradhar & Ors on 4 March, 2021
Author: Abhijit Gangopadhyay
Bench: Abhijit Gangopadhyay
04.03.2021
p.b.
Sl. No.5.
W.P.A. 8312 of 2020
With
CAN 1 of 2020
Central Bank of India
Vs.
Sanjay Sutradhar & Ors.
Mr. Bishwambher Jha,
......for the petitioner.
Mr. Malay Dhar
......for the respondent no.1.
Central Bank of India has filed one instant writ application for setting aside award dated 11th November, 2019 passed by the Central Government, Industrial Tribunal, Calcutta.
A reference was made by the Government of India to the tribunal which is as follows:-
"Whether employer-employee relationship existed between Shri Sanjay Sutradhar and the Central Bank of India in relation to Hill Cart Road Branch, Siliguri? If yes, whether the termination of Shri Sanjay Sutradhar from the service w.e.f. 31st December, 2007 is justified and legal? What relief the workman is entitled for?"
After taking evidence and considering the submissions of the parties, the tribunal held that it was an admitted position that the employee was a service holder 2 under the bank i.e. the Central Bank of India. His service was terminated by the bank without complying with the provisions of Section 24F of the Industrial Disputes Act of 1947 and, thus, the Act of the management was illegal. Therefore, the tribunal directed that the workman would be deemed to be in continuous service as before and, accordingly, had held that the workman was entitled to be reinstated in service from the date of his termination and was further entitled to 50% of back wages which may be found due to him.
The writ petition challenging the award is pending. However, in the meantime, the employee filed an application under Section 17B of the Industrial Disputes Act, 1947 for payment of full wages pending proceedings in higher courts. Here the writ application challenging the award is pending in this High Court.
The applicant workman submits referring to paragraph 6 of the 17B application that he was neither gainfully employed elsewhere and he is not earning 'adequate' amount to maintain his life along with his family and, therefore, under the said section of the Industrial Disputes Act, 1947, he is entitled to get the last drawn wages including allowances or the minimum wages as per the Minimum Wages Act, 1948 as on date whichever is higher.
3
The provision of the said section as he has submitted by way of affidavit, has been countered by the bank by filing affidavit in opposition to the said affidavit.
Section 17B of the Industrial Disputes Act, 1947 is as follows:-
"17-B. 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 the 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."
According to this section, the following things are required to be noted:- (i) the employer is liable to pay the 4 workman during the period of pendency of such proceeding in the High Court or the Supreme Court full wages last drawn by him, if the workman had not been employed in any establishment during such period; (ii) an affidavit by such workman is to be filed to that effect; (iii) it is to be proved to the satisfaction of the High Court or the Supreme Court that the employee is not employed and had not been receiving 'adequate' compensation during such period or part thereof; in such situation benefit under Section 17B would be given to him by the Court.
As this 17B application is an application, interlocutory in nature, this Court is hearing this application first before hearing the writ application.
The employer has contended that the petitioner runs a bag shop from which he earns. For getting certificate of enlistment from the concerned municipal corporation being Siliguri Municipal Corporation the employee had also filed an application before the concerned municipality. But, it has not been disclosed that the employee has got such certificate of enlistment. The application for getting certificate of enlistment is only a prayer for such a certificate and unless the certificate is granted by the appropriate authority being the municipal corporation, it cannot be said that he had one establishment for his own employment which has been recognised by the municipal corporation. Bank has not been able to disclose any such 5 certificate of enlistment despite granting opportunity to them by this Court to file supplementary affidavit. Further, in the supplementary affidavit, the bank has disclosed a loan application under the Pradhanmantry Mudra Yojana made by the employee to the bank where he worked. This application for loan shows the declaration of the employee that his annual existing sales was Rs.2 lakhs when he filed such application in the month of January, 2016.
I hold without any hesitation that this document fully goes against the bank.
If a person has annual sales of Rs.2 lakhs then his average monthly sales will not be more than 17,000 per month. If that be so, considering the thumb rule in almost all trading business, he used to earn profit of 10% on the sale amount (whether it is gross or net is not decided as not required) i.e. Rs.1,700 per month. The bank has submitted that his earning per month during his service with the bank was Rs.3,500/-.
According to the proviso of Section 17B, the workman if was employed and had been receiving 'adequate' remuneration during any such period then the Court would not grant any relief. Here question is whether a person, here the employee, who was receiving Rs.3,500/- per month according to the bank itself i.e. the employer and when on his own declaration which has come on record through the employer the employee was earning not 6 more than Rs.1,700/- per month then it can never be said that he earns 'adequate' amount even if he is self- employed.
The employee during the course of hearing has made an oral allegation against the bank that as he started running a hawkers shop in the footpath in front of the bank, the bank authority demolished it and threw him away though this allegation has been countered immediately from the Bar on behalf of the employer bank.
However, from the facts and circumstances of this case as discussed above and from the pleadings made in the 17B application, the affidavit in opposition and the supplementary affidavit thereto and the affidavit in reply used in connection with the said affidavits, I hold that the employee is entitled to get full wages last drawn by him, I hold accepting the submission of the bank that his total monthly earning was Rs.3,500/-.
The award was passed on 11th November, 2019. The writ application was filed nearly after one year on 8th October, 2020. The 17B application was filed on 22nd December, 2020.
This Court has held in one matter (WPA 456 of 2014) under Section 17B of the Industrial Disputes Act, 1947 following the enunciation of the principle laid down by the Supreme Court in Dena Bank vs. Ghanashyam reported in (2001) 5 SCC 169 that the payment is to be 7 made by the employer in such an event during the 'pendency of such proceeding' which really means from the date of the award and not from the date of filing of the proceeding. It has already been stated that the award was made on 11th November, 2019.
Therefore, on being satisfied about the case made out by the employee, I direct that the bank should comply with the provisions of Section 17B of the Industrial Disputes Act, 1947 and as the employee has accepted the 50% back wages as has been decided by the tribunal and has not made any challenge to it, 50% of the due amount from 11th November, 2019 till 31st March, 2021 is to be paid in one go and thereafter during the pendency of the writ application month by month the 50% of the wages i.e. Rs.1,750/- per month to the petitioner within the 7th day of the next month.
The entire amount at the above rate from 12th November, 2019 till 31st March, 2021 has to be paid by he bank by 30th April, 2021 and the monthly payment, from the month of April till the disposal of the writ application finally, every month thereafter in the manner as has been indicated above.
The affidavit in opposition in respect of the writ application has not been filed till date by the respondent no.1 being the employee. He is directed to file his affidavit 8 in opposition by two weeks from date. Reply, thereto, if an, to be filed by two weeks thereafter.
The matter will appear in the list on 6th April, 2021 under the heading "Hearing".
Thus, the main writ application is adjourned till 6th April, 2021. The application under Section 17B of the aforesaid Act is disposed of.
(Abhijit Gangopadhyay, J.)