Karnataka High Court
Delta Infralogistics (Worldwide) Ltd vs Sri Mohan K E on 2 September, 2022
Author: Alok Aradhe
Bench: Alok Aradhe
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 2ND DAY OF SEPTEMBER 2022
PRESENT
THE HON'BLE MR. ALOK ARADHE
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY
W.A. NO.1074 OF 2021 (L-RES)
IN
W.P. NO.45852 OF 2019 (L-RES)
BETWEEN:
DELTA INFRALOGISTICS (WORLDWIDE) LTD.,
DELTA HOUSE, 6TH FLOOR
BANGRA KULUR ROAD, MANGALORE-575013
REPRESENTED BY ITS MANAGING DIRECTOR
AHMED MOHIUDDIN.
... APPELLANT
(BY MR. S.N. MURTHY, SR. COUNSEL FOR
MR. MANJUNATHA B, ADV.,)
AND:
1. SRI. MOHAN K.E.
NO.6-82/31, KADYADHA
4TH CROSS ROAD, KODICAL KATTE
ASHOKNAGAR, MANGALORE-575 006.
2. THE CONCILIATION OFFICER
AND DEPUTY CHIEF LABOUR COMMISSIONER
(CENTRAL), SHRAM SADAN
3RD MAIN, 3RD CROSS, II PHASE
TUMKUR ROAD, BENGALURU-560022.
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3. THE SECRETARY TO
GOVERNMENT OF INDIA
MINISTRY OF LABOUR AND EMPLOYMENT
SHRAM SHAKTI BHAVAN
RAFI MARG, NEW DELHI-110001.
... RESPONDENTS
(BY MS/MRS. MAITREYA KRISHNAN, ADV., FOR C/R1
MR. SUSHAL TIWARI, ADV., FOR R2 & R3
ASG SERVED)
---
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER DATED 03/09/2021 PASSED BY THE LEARNED
SINGLE JUDGE ON IA NO.1/2019 AND PERMIT THE
APPELLANT TO ARGUE THE CASE ON MERITS IN THE WRIT
PETITION.
THIS WRIT APPEAL COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ACTING CHIEF JUSTICE DELIVERED
THE FOLLOWING:
JUDGMENT
This intra court appeal emanates from an order dated 03.09.2021 passed by learned Single Judge, by which application preferred by the respondent under Section 17D of the Industrial Disputes Act (hereinafter referred to as 'the Act' for short) is allowed and the appellant has been directed to pay the arrears of wages and to continue to pay wages to the respondent 3 until further orders or until final decision of this writ petition.
2. Facts giving rise to filing of the appeal briefly stated are that the appellant is a Company registered under the Companies Act and is engaged in providing services to its customers in various segments. The respondent No.1 (hereinafter referred to as 'the workman' for short) was appointed as Heavy Vehicle Driver in the establishment of the appellant. After a departmental enquiry, the disciplinary authority by an order dated 20.09.2017 imposed a penalty of dismissal on the workman. The appellant sought approval of dismissal by filing an application under Section 33(2)(b) of the Act. The aforesaid application was rejected by an award dated 26.04.2019.
3. The said award was challenged by the appellant in a writ petition before the learned Single 4 Judge. In the said writ petition, the workman filed a petition under Section 17B of the Act seeking payment of wages. The aforesaid application was resisted by the appellant on the ground that workman is self employed as he plies an auto rickshaw and therefore, is gainfully employed.
4. The learned Single Judge by an interim order dated 03.09.2021 inter alia held that workman is not employed in any establishment and is therefore, entitled to wages during the pendency of the writ petition. Accordingly, the application was allowed. In the aforesaid factual background, this appeal has been filed.
5. Learned Senior Counsel for the appellant submitted that Labour Court rejected the application seeking approval of termination of services under Section 33(2)(b) of the Act and there was no direction to reinstate the services of the workman. Therefore, 5 provisions of Section 17B of the Act do not apply. It is further submitted that workman was gainfully employed as he was plying an auto rickshaw. In support of aforesaid submissions, reliance has been placed on decision of the Hon'ble Supreme Court in NORTH EAST KARNATAKA ROAD TRANSPORT CORPORATION v. M.NAGANGOUDA1.
6. On the other hand, learned counsel for the workman has submitted that the provisions of Section 17B of the Act apply to a proceeding from an order passed on an application under Section 33(2)(b) of the Act. In support of aforesaid submissions, reliance has been placed on full bench decisions in High Courts of Delhi, Gujarat and Rajasthan, in DELHI TRANSPORT CORPORATION v. JAGADISH CHANDER2, ANVARKHAN GHAFURKHAN PATHAN v.
1 AIR 2007 SC 973 2 120 (2005) DLT 664 6 TRANSPORT MANAGER3 and HOTEL MANSINGH AND ORS. v. JUDGE, INDUSTRIAL TRIBUNAL AND ORS.4 It is further submitted that a self employed person would not be disentitled to receive the benefit under Section 17B of the Act as the workman is not employed in any establishment. It is urged that decision of the Hon'ble Supreme Court in NORTH EAST KARNATAKA ROAD TRANSPORT CORPORATION supra does not pertain to proceeding under Section 17B of the Act and has no application to the facts of the case in hand.
7. We have considered the rival submissions made on both sides and have perused the record. Before proceeding further, it is apposite to take note of Section 17B of the Act, which is extracted below for the facility of reference:
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2012 LLR 433 4 2018 (158) FLR 150 7 "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 8 section for such period or part, as the case may be."
8. The twin questions, which arise for consideration are (i) whether provisions of Section 17B of the Act are applicable in a proceeding which arises out of an order passed under Section 33(2)(b) of the Act? (ii) Whether a self employed person is not entitled to the benefit under Section 17B of the Act?
9. The Hon'ble Supreme Court in BHARAT SINGH V. MANAGEMENT OF NEW DELHI TUBERCULOSIS CENTRE5, has considered the statement of objects and reasons of introduction of Section 17B of the Act and has held that a construction which defeats the rights of havenots and the underdog and which would lead to injustice should always be avoided. In DENA BANK v. KIRTI KUMAR T. PATEL6, it has been held that object of the 5 AIR 1986 SC 84 6 (1999) 2 SCC 106 9 provision is to relieve to a certain extent the hardship that is caused to a workman due to delay in implementation of the award. It has further been held that payment, which is required to be made by the employer to the workman is in the nature of subsistence allowance.
10. The three ingredients, which are required to be fulfilled to attract the applicability of Section 17B of the Act are: (i) the Labour Court should have directed reinstatement of the workman; (ii) the employer should have preferred proceedings against such an award in the High Court or in the Supreme Court; (iii) the workman should not have been employed in any establishment during such period. [See: BHARAT SINGH V. MANAGEMENT OF NEW DELHI TUBERCULOSIS CENTRE7]. Thus, if the conditions precedent for invoking Section 17B of the Act are 7 AIR 1986 SC 84 10 fulfilled, the Court has to direct compliance of the provisions of Section 17B of the Act.
11. We may now advert to the first question involved in this appeal viz., whether provisions of Section 17B of the Act are applicable in a proceeding which arises out of an order passed under Section 33(2)(b) of the Act. On rejection of an application under Section 33(2)(b) of the Act, the inevitable result is that a workman is entitled to continuity in service with consequential benefits. In view of divergence of opinions of two division benches, a full bench of Delhi High Court in DELHI TRANSPORT CORPORATION supra inter alia held that an order rejecting an application under Section 33(2)(b) of the Act is an award and held that provisions of Section 17B of the Act would be applicable in a case where the management has assailed the validity of the order passed under Section 33(2)(b) of the Act subject to the conditions stated in Section 17B of the Act itself. 11 Similar view has been taken by a division bench of High Court of Gujarat as well as High Court of Rajasthan. We are in respectful agreement with the view taken by the aforesaid full bench decisions and hold that provisions of Section 17B of the Act are applicable in a case where the management has assailed the validity of the order passed under Section 33(2)(b) of the Act subject to the conditions stated in Section 17B of the Act itself. Accordingly, the first issue is answered in the affirmative.
12. Now, we may deal with the second issue viz., whether a self employed person is not entitled to the benefit under Section 17B of the Act. The normal function of a proviso is to accept something out of the enactment or to qualify something enacted therein. In DWARKA PRASAD v. DWARKA DAS8, the Hon'ble Supreme Court has held that a proviso must be limited to the subject matter of enacting clause and 8 AIR 1975 SC 1750 12 not being a separate or independent enactment. It was further held that 'words are dependent on the principal enacting words, to which they are tacked as a proviso, and cannot be read as divorced from their context'. In TRIBHOVANDAS HARIBHAI TAMBOLI v. GUJARAT REVENUE TIRBUNAL AND ORS.9, it has been held that it is a cardinal rule of interpretation that a proviso to particular provision of a statute only embraces the field which is covered by main proviso. Therefore, the word 'employed' used in the proviso has to be read in the context of the expression 'employed in any establishment' used in the main provision.
13. The issue whether the self employment amounts to employment in an establishment is no longer res intergra and has been answered by a two Judge bench of Supreme Court in RAJINDER KUMAR 9 AIR 1991 SC 1538 13 KINDRA v. DELHI ADMINISTRATION10. Para 21 of the aforesaid decision reads as under:
"If this is gainful employment, the employer can contend that the dismissed employee in order to keep his body and soul, together had taken to begging and that would as well be a gainful employment. The gross perversity with which the employer after an utterly case has left us stunned. If the employer after an utterly unsustainable termination order of service wants to deny back wages on the ground that the appellant and the members of his family were staying with the father- in-law of the appellant as there was no alternative source of maintenance and during this period appellant was helping his father-in-law Tara Chand who had a coal- depot, it cannot be said that the appellant was gainfully employed."
13. Thus, it is evident that self employment does not amount to an employment in an 10 AIR 1984 SC 1805 14 establishment. However, subsequently a two Judge Bench of the Hon'ble Supreme Court without referring to the decision of a coordinate bench in RAJINDER KUMAR KINDRA supra held as under:
"12. On the said question, we are unable to accept the reasoning of the labour court that the income received by the respondent from agricultural pursuits could not be equated with income from gainful employment in any establishment. In our view, "gainful employment" would also include self - employment wherefrom income is generated."
14. The earlier decision rendered by a two judge bench was neither considered nor has been distinguished in the subsequent decision. Therefore, the previous decision of the Hon'ble Supreme Court binds this court. Therefore, the second question is answered in the negative and it is held that self employment does not amount to employment in an establishment.
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In view of preceding analysis, we do not find any merit in this appeal. The same fails and is hereby dismissed.
Sd/-
ACTING CHIEF JUSTICE Sd/-
JUDGE SS