Calcutta High Court (Appellete Side)
(Steel Authority Of India Limited vs The on 19 December, 2018
1
8
19.12.2018
rrc
M.A.T. 749 of 2017
(Steel Authority of India Limited Vs. The
Union of India & Ors.)
Mr. Sundarananda Pal
Mr. Lakshmi Kanta Pal
Mr. Bandhu Brata Bhula
.....For the appellant
Mr. R. Guha Thakurata
....For the respondent no. 4
1. A mighty employer seeking to deprive a workman of "subsistence allowance" during the pendency of proceedings initiated by it before this Court for annulment of an award of reinstatement of such workman, is in appeal before us.
2. The appeal is directed against an order dated 17th April, 2017 passed by a learned Judge of this Court whereby His Lordship proceeded to grant relief to the respondent no. 4 under Section 17B of the Industrial Disputes Act, 1947 (hereafter the 'Act'). The learned Judge in the impugned order noticed that there was indeed a reference before the Central Government Industrial Tribunal, Kolkata (hereafter the 'CGIT'), which resulted in the CGIT returning a finding that 2 service of the respondent no. 4 was illegally terminated and that he was entitled to the relief of reinstatement; further that the award of the CGIT was challenged in the writ petition by Steel Authority of India (hereafter 'SAIL'); further that the respondent no. 4 had asserted not being in gainful employment since termination; and also that an affidavit had been filed by him pleading such fact which SAIL could not contradict by producing any cogent evidence. An order thus followed holding the respondent no. 4 to be entitled to the sum equivalent to wages last drawn by him prior to termination but with effect from the date of filing of the writ petition to be paid in the manner as directed therein.
3. Mr. Pal, learned senior advocate appearing for SAIL has contended that Section 17B of the Act would not come to the assistance of the respondent no. 4 on the following grounds:-
i) The respondent no. 4 was a casual
employee in a mine;
ii) The service of the respondent no. 4's
was terminated not as a measure of
penalty but by strictly adhering to the 3 terms and conditions contained in his letter of appointment;
iii) The mine where the respondent no. 4 had been employed has since been closed;
iv) The respondent no. 4 is not even entitled to any benefit under Section 25FFF(1A) of the Act; and
v) that the reference is bad.
4. In course of argument, Mr. Pal invited our attention to the interim order dated 17th April, 2017 passed by a co-ordinate Bench on the application for stay. For the reasons assigned by the co-ordinate Bench while staying the order under challenge till disposal of this appeal, Mr. Pal contended that we ought to follow such reasoning and allow the appeal.
5. Appearing for the respondent no. 4, Mr. Guha Thakurata, learned advocate, however, submitted that the interim order passed by the co-ordinate Bench ought not to be treated as binding and that we ought to re-consider the entire matter having regard to the law settled by the Supreme Court in its various decisions reported in (1998) 2 SCC 106: 4
Dena Bank Vs. Kirtikumar T. Patel and 2000-1 L.L.J. 39: C.M. Saraiah Vs. E.E., Panchayat Raj Department and Another, as well as the Division Bench decisions of this Court reported in 2009 (1) CHN 473 : Suresh Mahato Vs. G E Industrial Pvt. Ltd. and 2015-III-L.L.J.-304 (Cal): Emco General Plastic Industries (P) Ltd. Vs. State of West Bengal and Others which the coordinate Bench did not have the occasion to consider.
6. We have heard learned advocates for the parties and perused the decisions cited at the Bar as well as the interim order dated 17th April, 2017 passed on the stay application.
7. We find from the interim order that the co-ordinate Bench proceeded to consider the merits of the writ petition and made an order which virtually left nothing to be decided on such petition.
8. We regret our inability to concur with the approach of the co-ordinate Bench. At the stage of considering an application under Section 17B of the Act, it is not open for the High Court to delve deep into the award which is under challenge before it on the grounds urged by the employer. The only question that 5 should exercise the consideration of the High Court is whether the pre-conditions for granting relief under Section 17B of the Act are satisfied or not which would necessarily include an exercize to ascertain whether an award of a tribunal for reinstatement is under challenge or not and also as to whether an affidavit from the side of the workman, pleading that he is not in gainful employment since termination of service, is on record or not. Once such an affidavit is filed, the onus shifts on the employer to prove that the statement in the affidavit is not to be believed and that the workman is not entitled to any relief on the application under Section 17B of the Act.
9. In the present case, we find that such onus had not been discharged by the employer. Having regard thereto, it was not a proper exercise on the part of the co-ordinate Bench to give its observations, prima facie, on the merits of the objection to the award which is under challenge in the writ petition.
10. We, therefore, respectfully disagree with the view taken by the co-ordinate Bench.
6
11. The decisions cited by Mr. Guha Thakurata are authorities for the proposition that once the pre- conditions for invoking Section 17B of the Act are satisfied, interim monetary relief which is in the nature of subsistence allowance ought automatically to follow. We cannot be unmindful of the fact that Section 17B was not originally in the Act but has been introduced in 1984 with a particular object. Whenever an award of the tribunal directing reinstatement of a respondent workman/workmen is challenged before the High Court, it is not certain as to when the proceedings would be concluded. As it is, proceedings before the CGIT take a long time to conclude. If further time is taken before the superior courts and a workman is made to fight the legal battle without any source of sustenance, tiring him out of such battle by the employer is a real possibility. The Parliament was, therefore, alive to the situation that a workman without having any employment as well as means of sustenance may not survive and if his right of access to justice is to be protected, he has to be given certain interim relief. 7
12. This being the object of Section 17B of the Act, we have no hesitation to hold that the contentions Mr. Pal seeks to urge before us on the merits of the award cannot weigh in our minds to interfere with the order of the learned Judge.
13. For the reasons aforesaid, we find no merit in the appeal. The same stands dismissed. There shall, however, be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Bibek Chaudhuri, J.) (Dipankar Datta, J.)