NANDITA DUTTA v. THIRD INDUSTRIAL TRIBUNAL — 1998 DIGILAW 192 (CAL)

D. P. KUNDU, J. ( 1 ) THIS is an application under section 17b of the Industrial Disputes Act, 1947 (hereinafter referred to as the said Act) preferred by the workman for payment in accordance with the provisions of section 17b of the said Act. ( 2 ) IT is an admitted fact that the workman died on 2. 8. 1997 and thereafter his legal heirs have been substituted in place and stead of the workman. It is also a fact that the writ proceeding was initiated by the employer in July, 1996. ( 3 ) BY a reference dated 20. 8. 90 following issue was referred to the Third Industrial Tribunal, West Bengal for adjudication. "issue whether termination of service of Shri Rameswar Jha is justified? What relief, if any, is the workman entitled to?" ( 4 ) THE Tribunal by its award dated 6. 2. 96 passed, inter alia, the following order:"in the result the workman succeeds and he is entitled to get the reliefs as he prayed. The main issue as framed in the order of reference is thus answered in the negative and as such the workman should be reinstated with full back wages and other ancillary benefits like bonus etc. , if any. " ( 5 ) THE writ petitioner (hereinafter referred to as the Company) being aggrieved by and dissatisfied with the aforesaid award initiated a writ proceeding being C. O No. 7948 (W) of 1996 challenging the said award. ( 6 ) IN Bharat Singh v. The Management of New Delhi Tuberculosis Centre reported in AIR 1986 SC 842 , Supreme Court laid down three necessary conditions for application of section 17b of the said Act. Those conditions are (i) The Labour Court should have directed reinstatement of the workman, (ii) the employer should have preferred proceedings against such award in the High Court or in the Supreme Court and (iii) the workman should not have been employed in any establishment during such period. ( 7 ) IT appears from the facts and circumstances of the present case that admittedly conditions No. (i) and (ii) stated hereinabove are fulfilled in the present case. The question which falls for consideration is whether the third condition is also fulfilled in the present case? ( 7 ) IT appears from the facts and circumstances of the present case that admittedly conditions No. (i) and (ii) stated hereinabove are fulfilled in the present case. The question which falls for consideration is whether the third condition is also fulfilled in the present case? ( 8 ) THE workman in his application under section 17b of the said Act, in paragraph 7 of the application, stated :"the applicant workman is unemployed at present and is in acute financial stringency and is almost on the verge of starvation. " ( 9 ) THE company in its affidavit-in-opposition in connection with the aforesaid application of the workman, in paragraph 9 of the affidavit-in-opposition stated-"in fact at present he is plying taxi, therefore, it cannot be said that the respondent No. 4 is unemployed. "except this bold statement no particular has been disclosed in support of the said statement of the company. ( 10 ) IT is now well settled that when an employee after protracted litigation with the employer succeeds in showing that the termination of his service was unjustified he would normally be entitled to reinstatement with full back wages excepting of course if it could be shown that he had been gainfully employed in the meantime. It is also well settled that the full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. The workman is not expected to prove the negative. (Shambhu Nath v. Bank of Baroda; 1983 Lab IC 1697 ). Similarly in a case under section 17b a workman cannot be asked to prove that he was not in the employment. The workman stated that at the material time he had not been employed in any establishment. The company asserted that at the relevant time the workman was plying taxi, therefore it cannot be said that the workman was unemployed. It is for the company to prove the assertion. In the instant case the company could not prove that the workman was plying taxi. Under these circumstances I am of the view that the third condition for application of section 17b of the said Act namely that the workman should not have been employed in any establishment during pendency of the proceeding before the High Court is also satisfied. In the instant case the company could not prove that the workman was plying taxi. Under these circumstances I am of the view that the third condition for application of section 17b of the said Act namely that the workman should not have been employed in any establishment during pendency of the proceeding before the High Court is also satisfied. Therefore, I am of the view that the workman is entitled to full wages last drawn by him in terms of section 17b of the Industrial Disputes Act. ( 11 ) AS stated earlier the workman died on 2. 8. 97 and the writ proceeding was initiated in July, 1996. Now the question is whether the legal heirs of the workman who have been substituted in this writ proceeding in place and stead of the workman are entitled to get the payments in terms of section 17b of the said Act after 2. 8. 97? The learned Advocate for the workman argued that the legal heirs of the workman are entitled to payment in terms of section 17b of the said Act even after 2. 8. 97 during the pendency of the writ proceeding. The learned Advocate for the workman referred to Bharat Petroleum Corporation Ltd. and Anr. v. Union of India and Ors. reported in 1998 (1) CHN 167 and also Chapter VI of Maxwell on the Interpretation of Statutes, 12th Edition by P. St. J Langan. In Bharat Petroleum Corporation Ltd. 's case, I held that where three necessary conditions for the application of section 17b of the said Act stated earlier in this judgment are satisfied, court is under obligation to pass orders in terms of section 17b of the said Act. In the instant case the workman expired on 2. 8. 97. Therefore, on and from 3. 8. 97 there cannot be any question of his being employed or not employed. Therefore, on and from 3. 8. 97 the third condition as stated hereinabove remained not satisfied and, therefore, on and from 3. 8. 97 section 17b of the said Act became not applicable. ( 12 ) THE learned Advocate for the petitioner referred to Chapter-VI of Maxwell on the Interpretation of Statues, the chapter deals with construction to prevent evasion. The learned Advocate for the petitioner referred to the following passage. 8. 97 section 17b of the said Act became not applicable. ( 12 ) THE learned Advocate for the petitioner referred to Chapter-VI of Maxwell on the Interpretation of Statues, the chapter deals with construction to prevent evasion. The learned Advocate for the petitioner referred to the following passage. ""i never understand," said Lord Cranworth L. C. (at p. 89), "what is meant by evading an Act of Parliament. Either you are within the Act or you are not; if you are not within it, you are right; if you are within it, the course is clear, and it cannot be said that you are not within it because the very words of the Act may not have been violated. " On the other hand, there is no doubt that "the office of the Judge is, to make such construction as will suppress the mischief, and advance the remedy, and to suppress all evasions for the continuance of the mischief. " To carry out effectually the object of a statute, it must be so construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined: quando aliquid prohibetur, prohibetur et omne per guod devenitur ad illud. "i have already stated earlier that on and from 3. 8. 97 section 17b of the said Act has become inapplicable due to the death of the workman on 2. 8. 97. Therefore, in my view, the above quoted passage from the Maxwell on the Interpretation of Statutes does not help the legal heirs of the workman. ( 13 ) THE learned Advocate for the respondent referred to Rameswar Manjhi (dceased) thro' his son Lekhiram Manjhi v. Mgt. of Sangramgarh Colliery and Ors. reported in 1994 (1) LLJ 376 . In that case the Supreme Court held that it is difficult to understand why a claim of money which became payable to the deceased workman should not be claimable, upon satisfaction of other relevant conditions, by the heirs of the deceased workman by making a claim under sub-section (2) of section 33a of the Industrial Disputes Act. In that case the Supreme Court held that it is difficult to understand why a claim of money which became payable to the deceased workman should not be claimable, upon satisfaction of other relevant conditions, by the heirs of the deceased workman by making a claim under sub-section (2) of section 33a of the Industrial Disputes Act. It was held that having regard to the well established principle that all causes of action, except those which are known as dying along with the death of person, must survive to his heirs, the cause of action created in favour of workman under sub-section (2) of section 33a of the Industrial Disputes Act should in normal circumstances survive to the heirs. Paragraph 11 of the reported decision is quoted hereinbelow:"we do not agree with the view-point of Delhi and Orissa High Courts to the effect that the claim for computation under sub-section (2) of section 33c of the Act dies with the death of the workman. It is difficult to understand why a claim of money which became payable to the deceased workman should not be claimable, upon satisfaction of other relevant conditions, by the heirs of the deceased workman by making a claim under sub-section (2) of section 33c of the Act. Having regard to the well established principle that all causes of action except those which are known as dying along with the death of a person must survive to his heirs, the cause of action created in favour of workman under sub-section (2) of section 33c of the Act should in normal circumstances survive to the heirs. We approve the reasoning of the Bombay High Court in Sitabai's case. "i am of the view that the same principle is also applicable in respect of a claim under section 17b of the Industrial Disputes Act. I am of the view that the legal heirs of the workman who have been substitued in the instant writ proceeding in place and stead of the workman are entitled to get the payment due to the workman under section 17b of the said Act from July, 1996 to 2. 8. 97. On and from 3. 8. 97 the legal heirs are not entitled to get any payment under section 17b of the said Act. 8. 97. On and from 3. 8. 97 the legal heirs are not entitled to get any payment under section 17b of the said Act. ( 14 ) IN W. P. 610 of 1997 (Tata Metalikes Ltd. v. Fourth Industrial Tribunal) while dealing with an application under section 17b of the said Act I observed as follows:"in my opinion the said section 17b has created an obligation which the employer is bound in law to perform. Section 17b has laid down conditions which create a duty to perform, under section 17b the employer is bound or obliged in law to pay the workman in terms of the said section and this can be enforced by an action under law. Thus it appears to me that section 17b of the said Act has created a liability of the employer and a corresponding right of the workman. This liability of the employer is depending for its existence on the statute and not on the contract of the parties. It is liability created by a statute. " ( 15 ) SUPREME Court in Dena Bank v. Kiritikumar T. Patel reported in 1998 (1) LLJ 1 held that the object underlying the provision of section 17b of the said Act is to relieve to certain extent the hardship that is caused of the workman due to delay in the implementation of the award. It was held by the Supreme Court that the payment which is required to be made by the employer to the workman is in the nature of subsistence allowance which could not be refundable or recoverable even if the award is set aside by the High Court. The order of termination of the service of a workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependants. It is also true that the payment which is required to be made by the employer to the workman under section 17b of the said Act is in the nature of subsistence allowance. But the liability created by section 17b of the said Act cannot be extended to make available the payment in the nature of subsistence allowance even after the death of the workman. But the liability created by section 17b of the said Act cannot be extended to make available the payment in the nature of subsistence allowance even after the death of the workman. The employer shall be responsible and liable to make payment in terms of section 17b if all the three essential conditions for application of section 17b are satisfied till the date of death of the workman and not beyond that. The legal heirs of the workman who have been substituted in the instant writ proceeding in the place and stead of the workman are entitled to get, as discussed hereinabove, the payment in terms of section 17b till the date of death of the workman. ( 16 ) IN view of the discussions made hereinabove I am of the view that the legal heris of the workman who have been substituted in the instant writ proceeding in place and stead of the workman are entitled to get the payment in terms of section 17b of the said Act which was due to the workman from the date of initiation of the proceeding till the date of death of the workman i. e. from 15. 7. 96 to 2. 8. 97 (both dates inclusive ). I, therefore, direct the company to pay the said legal heris of the workman the payment due to the workman in terms of section 17b of the said Act for the period from 15. 7. 96 to 2. 8. 97 within 30th May, 1998. In these terms the application under section 17b of the said Act is disposed of. Petition disposed of