Calcutta High Court (Appellete Side)
The Statesman Limited vs The State Of West Bengal & Ors on 17 August, 2018
Author: Subrata Talukdar
Bench: Subrata Talukdar
1
17.08.2018
17
b.r
Crt.26
W.P. No. 18137(W) of 2017
With
CAN 8540 of 2017
(Assigned)
The Statesman Limited
-vs-
The State of West Bengal & Ors.
Mr. S.R. Saha
... for the petitioner.
Mr. Rananesh Guha Thakurata,
.... For the Private Respondent.
Party/parties are represented in the order of their name/names as printed above in the cause-title.
The writ petition has been assigned before this Bench by a note of the then the Hon'ble the Acting Chief Justice dated 1st of November, 2017.
In the writ petition, the Respondent No.3/the Workman (for short referred to as R-3/W) has filed an application under Section 17B of the Industrial Disputes Act, 1947 (for short the 1947 Act) claiming, inter alia, payment of full back wages by the employer/the writ petitioner/The Statesman Limited (for short STL) from the date of passing of the impugned Award. 2 It is relevant to point out at this juncture that Award in issue has been passed by the 5th Industrial Tribunal, West Bengal (for short the learned 5th Tribunal) on a reference under Section 10 of the 1947 Act connected to the following two issues:-
(i) Whether the transfer of the workman Sri Deonath Singh from Kolkata to Chennai by the management in their order dated 17th May, 2004 is justified?
(ii) What relief, if any, is he entitled?
In view of the fact that the learned Tribunal returned the reference by passing the Award in favour of R-3/W, writ petitioner/STL has challenged the same through the present writ petition. The learned 5th Tribunal, inter alia, held through its Award as follows:-
First, that the order of transfer is found to be violative of Section 9A of the 1947 Act since, there has been an alteration without notice of the condition of service attached to the employment of R-3/W in the Kolkata office of STL.
Second, there is no material to justify that the impugned order of transfer is violative of Section 33A of the 1947 Act. 3
After an elaborate discussion, the learned 5th Tribunal held as follows:-
" In view of the foregoing discussion and having regard to the submissions made by the learned representative for the union and the learned Advocate for the company and taking the cue from the decisions placed before the Tribunal by both sides, the irresistible conclusion follows that the order of transfer dated 17.05.2004 is violative of the provisions of Section 9-A of the Industrial Disputes Act, 1947 and is mala fide and was passed without any reason and that the order of transfer dated 17.05.04 is in operative, void in law and not justified. As the order of transfer is in operative, void in law and unjustified, the workman Sri Deonath Singh continues to be employee of the company. Under the circumstances, the company cannot escape the liability of paying the back wages. Considering the facts and circumstances of the case, the company is directed to pay 50% back wages to the workman Sri Deonath Singh from the date of reference till he is retained fully in his previous place of posting.
In the result, the instant reference and issues are disposed of accordingly."
Mr. Guha Thakurata, learned Counsel appearing in support of the application under Section 17B of the 1947 Act and representing R-3/W relies upon the following decisions:- 4
(i) Delhi Transport Corporation Vs. Jagadish Chander of the Hon'ble Special Bench of the Delhi High Court as reported in 2005-III-LL.J 150; (ii) The unreported judgement of the Hon'ble Single Bench in CAN 10964 of 2014 arising out of W.P. No. 28136(W) of 2014 dated 28th July, 2017 in the matter of Peerless Inn -vs- First Industrial Tribunal & Ors.
Mr. Guha Thakurata also relies upon the authority of 2001 LAB I.C. 2118 to make the preliminary point that prior to taking up the challenge to an Award, it would be at first the requirement of the Court to decide any application filed under Section 17B of the 1947 Act, which has been so done in the facts of the present case.
Relying on the decisions as cited above, Mr. Guha Thakurata submits that the concept of wages and particularly the conferment of full wages under Section 17B of the 1947 Act cannot be given a restrictive definition. The expression reinstatement connected to an industrial Award must be given the widest expression and it would be amply evident from the Award itself that the Learned 5th Industrial Tribunal intended 5 to reinstate the applicant R-3/W to his post as existing prior to issuance of the impugned order of transfer.
Mr. Guha Thakurata submits that from the pronouncement of the Hon'ble Single Bench in W.P.28136 (W) of 2014, reference has been drawn to several decisions of the Hon'ble Apex Court wherein it would be clear that the scope of relief under Section 17B of the 1947 Act has to be of the widest amplitude and given full effect considering the letter, intent and spirit of the Section. On the strength of the decision of the Odisha High Court In Re: M/s I.D.L. Chemicals Limited Vs. S.R. Tamma and Another as reported in 1989 (58) FLR Page 28 Learned Counsel submits that even if Section 17B is held not to apply to the facts of an industrial reference/the Award, this Court, sitting in Jurisdiction under Article 226 of the Constitution of India can mould the relief to grant full back wages to the applicant/R3/W. Mr. Saha, Learned Counsel appearing for the writ petitioner/STL submits that the facts arising out of the impugned Award do not present a case of reinstatement simplicitor . Mr. Saha submits that under challenge before the Learned Tribunal was the order of transfer dated the 17th of 6 May, 2004 issued by STL and transferring R3/W from Kolkata to Chennai. Learned Tribunal struck down the order of transfer by observing, inter alia, in its operative portion (as already reproduced above) that the order of transfer dated 17.05.04 is inoperative and the workman ...... Shri Deo Nath Singh continues to be employee of the company.
Placing reliance upon the expression to be employee of the Company, Mr. Saha submits that the relief of 50% backwages was accordingly granted to the applicant/R3/W from the date of reference till the applicant/R3/W is retained in service following the Award.
Accordingly, Mr. Saha points out that by the Award applicant/R3/W was never dismissed from service warranting his reinstatement through enforcement of his rights under Section 17B of the 1947 Act. The relief of 50% of back wages was granted by the Learned Tribunal in favour of R3/W taking note of the fact that the petitioner had not discharged any duties during pendency of the reference Therefore, Mr. Saha points out that the relief under Section 17B of grant of full back wages last drawn by him 7 during pendency of any challenge to the Award before a superior Court is not equivalent to the relief extended to R3/W by the Learned 5th Tribunal while quashing the order of transfer. Since the petitioner was never deemed to be out of service following the Award, the deeming fiction cannot be invoked by R3/W to claim reinstatement for the period during which the reference was pending.
Mr. Saha relies upon the authority of W.P.1703 of 1999/G.A. No.1664 of 2000, In the matter of: Texmaco Limited vs. State of West Bengal at Paragraphs 51, 52, 54, 55, 56, and 57 thereof, to submit that unless there is a clear case made out for reinstatement, there cannot be an automatic invocation of Section 17B perverting the letter and spirit of the special statute on an assumed application of a sympathetic approach.
Having heard the parties and considering the materials placed, this Court finds that the Special Statute, viz. the 1947 Act has been designed to accommodate specific rights and obligations of both the employer and the workman. Section 17B is a species of a right accruable to the workman, on occurrence of the specific event of reinstatement that becomes the subject of a challenge before Court. 8
In the facts of the present case, this Court is conscious of the observations of the learned 5th Tribunal that it is the order of transfer which stands set aside having the deeming effect of continuing the petitioner in service and, not reinstating him.
This Court is also conscious of the fact that the relief crafted by the Learned Tribunal was commensurate to its decision upon finding and, setting aside the order of transfer as bad in law.
In the above view of the matter, this Court is ad idem with the stand taken by the Learned Counsel for the Writ Petitioner/STL that the application under Section 17B filed by the applicant/R3/W is misconceived to the present position of facts.
Accordingly, CAN 8540 of 2017 stands dismissed on contest.
However, the Writ Petition will be heard on the Note of Assignment as recorded above.
9
Parties shall be now free to exchange their Affidavits to the Writ Petition cumulatively within the next date.
Let the Writ Petition next appear under the same heading "Assigned Matters" in the Combined Monthly List of October, 2018.
(Subrata Talukdar, J.)