Calcutta High Court (Appellete Side)
Sethia Oils Limited vs The State Of West Bengal & Ors on 4 October, 2023
2 IN THE HIGH COURT AT CALCUTTA
04.10.2023 CONSTITUTIONAL WRIT JURISDICTION
sb
Ct 550 APPELLATE SIDE
WPA 1930 of 2022
With
CAN 2 of 2023
Sethia Oils Limited
Versus
The State of West Bengal & Ors.
Mr. Victor Chatterjee
Mr. Pranav Sharma
... For the petitioner.
Mr. Amal Kumar Sen
Mr. Lal Mohan Basu
... For the respondent no.1.
Mr. Narayan Rakshit Mr. Md. Idrish ... For the respondent no.2.
In re: CAN 2 of 2023
1. The present application being CAN 2 of 2023 has been filed under Section 17B of the Industrial Disputes Act, 1947 (hereinafter referred to as the "said Act").
2. It is the workman's contention that he was appointed as driver by the factory manager of the writ petitioner and had continued to work as driver from 1991- 92 till 18th May, 2013, under the supervision, control and administration of the factory manager.
3. Unfortunately, applicant's service was terminated which compelled him to approach the learned Ninth Industrial Tribunal, Durgapur. The said proceeding was contested by the writ petitioner. By an award dated 19th February, 2018, the learned Ninth Industrial Tribunal 2 was, inter alia, pleased to dispose of the said proceedings by directing reinstatement of the applicant as driver of the writ petitioner along with back wages from 22nd May, 2013.
4. Despite the award directing reinstatement of the applicant, the writ petitioner did not reinstate him in his service. On the contrary, after a lapse of 4 years from the date of passing of the award had filed a writ petition before this Court which was registered as WPA 1930 of 2022.
5. By an order dated 8th of April, 2022, a Coordinate Bench of this Hon'ble Court was, inter alia, pleased to stay the award impugned in the writ petition. It is the writ petitioner's contention that the writ petitioner in compliance of the direction issued by the Coordinate Bench of this Hon'ble Court and the condition provided therein, has deposited a sum of Rs.2,00,000/-with the learned Registrar General of this Court.
6. In the interregnum in connection with above writ petition the present application under Section 17B of the said Act, has been filed.
7. Mr. Rakshit, learned advocate representing the applicant/workman by drawing attention of this Court to the statement made in paragraph 8 of the application submits that the applicant is jobless since, 2013 and has 3 no source of income. It is still further contended that the applicant is not engaged in any work permanently since, 2013 and is dependent on financial help from his friends and relatives. It is also been stated in the said paragraph that the last drawn monthly remuneration was Rs.5000/- in the year 2013 before his retrenchment. In the facts noted above he prays for release of financial benefits under Section 17B of the said Act, in favour of the applicant.
8. Per contra, Mr. Chatterjee, learned advocate representing the writ petitioner by placing reliance on an affidavit-in-opposition, filed on behalf of the writ petitioner in Court today which is taken on record, submits that the aforesaid application has been filed belatedly. By drawing attention of this Court to paragraph 10 of the affidavit-in- opposition he submits that the applicant can be seen regularly driving a Toto and as such, taking into consideration the same and the conduct of the applicant, and the factum of belatedly filing of the application, it would be apparent that the applicant is not in need of any financial assistance, as provided for in Section 17B of the said Act.
9. Having regard to the aforesaid, it is submitted that this Court ought not to grant any relief in favour of the applicant.
10. Heard learned advocates appearing for the 4 respective parties and considered the materials on record. I, notice that for an application under Section 17B of the said Act to succeed, the following conditions must be satisfied:-
I. There must be an award directing reinstatement of the workman passed by a Labour Court, Tribunal or National Tribunal II. There must be a challenge to such award by the employer before the High Court or the Supreme Court and III. The workman must file an affidavit claiming that he had not been employed in any establishment during the aforesaid period.
11. Taking note of the pleadings filed by the parties and the application filed on behalf of the applicant, it is apparent that all the aforesaid three conditions, in the present case stand satisfied. It, however, must be kept in mind that the proviso to Section 17B of the said Act, inter alia, provides that where it is proved to the satisfaction of the High Court or the Supreme Court as the case may be, that the workman had been employed and had been receiving adequate remuneration during such period or part thereof, the Court shall order that no wages shall be payable to him under the aforesaid Section for such period or part, as the case may be.
12. Although, it has been strenuously argued by Mr. Chatterjee that since, the applicant can be seen regularly, 5 driving a Toto, the applicant is not entitled to any relief under Section 17B of the said Act, I, however, do not find any statement being made by the writ petitioner that the applicant is engaged in any establishment and is receiving adequate remuneration.
13. Having regard to the aforesaid, I am of the view that the writ petitioner has failed to prove to the satisfaction of this Court that the applicant is engaged in any establishment and has been receiving adequate remuneration. The only other point raised by the petitioner is with regard to the delay in filing the application. I find that the statute has provided for the minimum guaranteed compensation, in the form of maintenance under Section 17B of the said Act. Delay in filing the application, in my view, cannot defeat the legal right of the applicant to be entitled to the minimum maintenance as provided for. As such there cannot be any fetter in grant of compensation as provided in Section 17B of the said Act.
14. I am of the view that the applicant has been able to make out a case to be entitled to relief under Section 17B of the said Act.
15. At this stage, Mr. Rakshit insists that the relief should be granted from the date of passing of the award. To appreciate the aforesaid submission it is necessary to consider the object of inserting Section 17B in the said Act.
16. A perusal of the statement of objects and reasons for inserting Section 17B in the said Act, would indicate that 6 when Labour Courts pass award of reinstatement, they are often contested by employers in the Supreme Court and High Courts. To mitigate the hardship that would be caused due to delay in implementation of the award, it was proposed to provide for payment of wages last drawn by the workman concerned from the date of the award till the dispute between the parties is finally decided in the High Courts or the Supreme Court. It follows that in the event of an employer not reinstating the workman and seeking any interim relief in respect of the award directing reinstatement of the workman or in a case where the Court is not inclined to stay such award in toto, the workman has two options either to initiate proceeding to enforce the award or be content with receiving the full wages last drawn by him without prejudice to the result of the proceedings preferred by the employer against the award, till he is reinstated or proceedings are terminated in his favour, whichever is earlier. Ordinarily, therefore, if there is no challenge to the award, the workman has the right to enforce the same. Such right, however, takes a back seat when the same is challenged in a Superior Court being the High Courts or the Supreme Court where balance of inconvenience ordinarily requires stay of implementation of the award. The right to enforce the award, on the filing of the application, takes a back stage and it is for such purpose, with the object of providing minimum compensatory benefits to the workman, a right has been given to the workman to claim wages last 7 drawn. The trigger for invoking such right being the filing of a proceeding, challenging the award either before the Supreme Court or before the High Court, so long such challenge is not initiated, the right to seek such compensation does not surface, as the workman has the right to independently enforce the award. However, once such challenge is made, the right to claim compensation dates back to the date of the commencement of the Award.
17. Having thus, considered the object of insertion of Section 17B in the said Act as aforesaid, I am of the view that the applicant shall be paid his last drawn wages, as claimed by him in his application, which has not been disputed by the writ petitioner, from the date of commencement of the Award, upon publication thereof, in terms of Section 17 of the said Act.
18. The writ petitioner is directed to pay the current last drawn wages of the applicant, inclusive of any maintenance allowance, admissible to him, if any, on/or before 5th of every succeeding English calendar month, month by month until further order of this Court or until the applicant reaches the age of superannuation, whichever is earlier.
19. Insofar as arrears are concerned, the writ petitioner shall pay the same in four equal monthly instalments. First of such instalments be paid on or before 20th October, 2023.
20. With the aforesaid observations/directions, the application, being CAN 2 of 2023 stands disposed of.
21. Urgent photostat certified copy of this order, if applied 8 for, be given to the parties on priority basis upon completion of requisite formalities.
(Raja Basu Chowdhury, J.)