Calcutta High Court (Appellete Side)
Anmol Biscuits Pvt. Ltd vs State Of West Bengal & Ors on 8 December, 2021
Author: T. S. Sivagnanam
Bench: T. S. Sivagnanam
08.12.2021
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ns/pg Ct.16
FMA 1819 of 2018
With
I.A. No.CAN 1 of 2017 (Old CAN 10059 of 2017)
With
I.A. No.CAN 2 of 2019 (Old CAN 1518 of 2019)
Anmol Biscuits Pvt. Ltd.
Vs.
State of West Bengal & ors.
Mr. Soumya Majumdar,
Mr. Victor Chatterjee .. for the appellant.
Mr. Achintya Banerjee,
Mr. Anand Fermania,
Ms. Indu Mouli Banerjee
... for respondent/workman.
Re: I.A. No.CAN 2 of 2019 (Old CAN 1518 of 2019) We have heard learned counsel for the applicant / respondent and Mr. Soumya Majumdar, learned counsel for the appellant.
This application has been filed by the respondent in the main appeal to pay the last drawn wages to the applicant / second respondent from the date of dismissal together with interest. The applicant, for the sake of brevity shall be referred to as "the workman", challenged the order of termination of service dated 18th April, 2006 before the First Labour Court, West Bengal under Section 10(1B) (d) of the 2 Industrial Disputes Act. The said dispute was taken on file as Case No.04 of 2009 and the Labour Court by an award dated 11th August, 2016 allowed the petition and directed the appellant/ management to reinstate the workman in service in the post from which he was terminated and if he does not attain the age of superannuation with 40% back wages only till the date of his reinstatement. On the other hand, if the workman attains the age of superannuation, back wages was directed to be paid till his superannuation. The management had challenged the award by filing a writ petition being W.P. No.14062(W) of 2017. The learned Single Bench after considering the contentions placed before it, by order dated 25 th July, 2017 dismissed the writ petition holding that the Labour Court had rightly applied the law and assessed the evidence from a proper ambit and the award cannot be said to be vitiated on any of the grounds.
The management has filed the present appeal and when the appeal was heard for admission, prayer for stay was sought for and the Hon'ble Division Bench by an order dated 6th February, 2019 granted an order of stay of the impugned order till the disposal of the application by giving liberty to the workman to file affidavit in the nature required by Section 17B of the Act.
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In terms of such direction, the affidavit has been filed by the workman stating that charge memo was issued to the workman on 20 th May, 2005 and was placed under suspension and from the said date the workman was not gainfully employed. Further, it has been stated that the proceedings before this Court are being conducted by the learned counsel as pro bono and that it is very difficult for the workman to maintain his livelihood and he is living a pitiable life and largely dependant on the neighbours. The workman would further state that the subsistence allowance, was paid lastly at the rate of Rs.983/- and the last drawn wages is Rs.1131/- in the year 2006. Further, it is submitted that a similarly placed person in the management is drawing Rs.7,149/-. The respondent has filed an affidavit-in-opposition and it is stated that the management has gathered information from the locality that the workman is gainfully employed in City Queen Gas Service, a dealer of Bharat Gas, operating in Dankuni area and having its godown in a particular locality and that he is working as a delivery man for the last 12 years. The workman has filed an affidavit-in-reply denying the said allegation that he is gainfully employed as a delivery man in the said gas agency. Without prejudice to such contention, the workman would contend that being engaged as a delivery man in a shop cannot be 4 treated as gainful employment and it is only a way out for survival of the workman and the workman has reiterated that he has not been gainfully employed since 20th May, 2005, when he was placed under suspension.
We have elaborately heard the learned counsels for the parties and carefully perused the materials placed before us. The test as to whether a workman is gainfully employed or otherwise when a proceeding is pending before this Court at the instance of the management challenging an award of reinstatement is no longer res integra. The word "gainful" has been interpreted to mean that the workman concerned should be able to enjoy as many benefits as he would enjoy had he continued to be in employment of the management without being terminated from service. It has been further held that if the workman concerned has taken up certain odd jobs that was termed to be not a gainful employment but a step taken by the workman to help him to survive. In the instant case, the management has not been able to substantiate that the workman was gainfully employed nor employed in the said gas agency. Even assuming the workman was employed as a delivery man in the gas agency, the remuneration which he may secure will be meagre and will not be sufficient for his survival. Therefore, we are of the 5 view that the workman has been able to substantiate that he is not being gainfully employed and therefore, he is entitled to last drawn wages payable to the workman.
Accordingly, the application is allowed and the last drawn wages shall be paid to the workman from the date of filing of the writ petition, i.e. May, 2017. So far as the arrears are concerned, the same shall be calculated on the last drawn wages less subsistence allowance, if any, and the same shall be paid to the workman to be calculated from the date of filing of the writ petition, i.e, May, 2017 till 30th November, 2021 within eight weeks from the date of receipt of the communication of this order, either certified or the web copy. The wages under Section 17B of the Act for the month of December, 2021 shall be paid to the workman not later than 5 th January, 2022 and the management shall continue to pay wages for the succeeding months on or before the 5 th of each succeeding month.
Urgent photostat certified copy of this order, if applied for, be given to the parties expeditiously upon compliance of all legal formalities.
( T. S. Sivagnanam, J.) 6 (Hiranmay Bhattacharyya, J.)