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Showing contexts for: section 17b in The Statesman Limited vs The State Of West Bengal & Ors on 17 August, 2018Matching Fragments
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 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 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 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.