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2006 DIGILAW 1102 (GAU)

Rajib Saikia v. Indian Tea and Provision Ltd.

2006-12-12

RANJAN GOGOI

body2006
JUDGMENT Ranjan Gogoi, J. 1. This Miscellaneous application has been filed seeking a direction from the court under the provisions of Section 17B of the Industrial Disputes Act, 1947, for payment of the last drawn wages of the applicant-workman during the pendency of the writ petition registered and numbered as W.P.(C) No. 2012 of 2006 filed by the employer-management. 2. I have heard Mr. B.N. Sarma, learned Counsel appearing for the applicant-workman and Mr. B. Sen, learned Senior Counsel appearing for the O.P./writ petitioner. The applicant-workman was, at the relevant point of time, working as an Accounts Clerk in the Shyamguri Tea Estate which is located in the district of Sonitpur of the State of Assam. He was transferred to Pearacherra Tea Estate located in the State of Tripura with effect from 21.1.2002. Both the Tea Estates were under the management and control of Indian Tea & Provisions Limited, i.e., the writ petitioner. Taking the stand that his transfer to the Tea Estate in Tripura was not authorized and valid the petitioner raised an industrial dispute which was referred for adjudication to the learned Labour Court at Guwahati. Specifically it may be noticed that the following two questions were referred for adjudication by the learned Labour Court. 1. Whether the Management of Shyamguri T.E., P.S. Darrang Panbari, Dist. Sonitpur are justified in transferring Sri Rajib Saikia, Accounts Clerk to Pearcherra T.E. which is located in Tripura with effect from 21.1.2002. 2. If not, whether the workman should be re-posted at the same T.E. with his full back-wages or relief in life thereof. 3. The learned Labour Court on receipt of the reference registered and numbered the same as Reference Case No. 15/2003 issued notice to the contesting parties who filed their respective written statements. Thereafter, evidence was adduced by both sides. The learned Labour Court by the Award dated 31.8.2005 took the view that transfer of the petitioner to the Tea Estate in Tripura is invalid and therefore the petitioner is entitled to be re-posted as an Accounts Clerk in the Shyamguri Tea Estate with full back wages. Aggrieved, the management has instituted the writ proceeding registered and numbered as W.P.(C) No. 2012/2006 wherein by an interim order dated 7.4.2006 this court had directed that the operation of the impugned Award dated 31.8.2005 shall remain stayed. Aggrieved, the management has instituted the writ proceeding registered and numbered as W.P.(C) No. 2012/2006 wherein by an interim order dated 7.4.2006 this court had directed that the operation of the impugned Award dated 31.8.2005 shall remain stayed. Thereafter, the present Miscellaneous application has been filed seeking a direction for payment of the last drawn wages of the workman under the provisions of Section 17B of the Industrial Disputes Act, 1947. 4. Mr. B.N. Sarma, learned Counsel appearing for the applicant-respondent, in the course of his argument by referring to the provisions of Section 17B of the Act and the findings and directions contained in the Award dated 31.8.2005, has argued that as the Award has been stayed by this court by its interim order dated 7.4.2006, a direction should be issued by this court under the provisions of Section 17B of the Act for payment of the last drawn wages of the concerned workman. In this regard, Sri Sarma has further taken the court through the averments made in the Miscellaneous application and the reply affidavit to contend that the petitioner was not gainfully employed at any relevant point of time so as to disentitle him to the last drawn wages under Section17B of the Act. 5. Controverting the submissions advanced by Sri Sarma, learned Counsel for the applicant-respondent, Sri Sen, has submitted that under Section 17B of the Act the jurisdiction of the court to direct payment of last drawn wages to a workman will be attracted only in a situation where the Award is one of reinstatement. In the present case the Award, on the face of it, does not direct reinstatement of the workman inasmuch as at no point of time the workman was dismissed or discharged from service or his services were in any way terminated. By the impugned Award the learned Labour Court had merely directed that the concerned workman should be reposted in Shyamguri Tea Estate with back wages. This is not an order of reinstatement so as to empower this court to exercise jurisdiction vested by Section 17B of the Act. By the impugned Award the learned Labour Court had merely directed that the concerned workman should be reposted in Shyamguri Tea Estate with back wages. This is not an order of reinstatement so as to empower this court to exercise jurisdiction vested by Section 17B of the Act. Sri Sen has further contended that it is the specific case of the management, as stated in the counter affidavit filed, that the workman was gainfully employed, at all relevant points of time, in scrap business and therefore the further condition precedent to the exercise of power under Section 17B of the Act would be absent in the present case so as to empower the court to pass an order for payment of the last drawn wages of the workman. 6. Section 17B was brought into the statute book by an amendment made by Act XI of 1976. The objects and reasons for the aforesaid amendment in so far as the insertion of Section 17B is concerned, as published in the Gazette of India, is to the following effect. (vi) It is observed that when Labour Courts pass awards of reinstatement, these are often contested by an employer in the Supreme Court and High Courts. The delay in the implementation of the award causes hardship to the workmen concerned. It is, therefore, proposed to provide for payment of wages last drawn by the workmen concerned, under certain conditions, from the date of the award till the case is finally decided in the Supreme Court or the High Courts. 7. From a careful analysis of the objects and reasons behind introduction of Section 17B in the Industrial Disputes Act, 1947, it is crystal clear that the said provision was brought into the statute book to prevent hardship occasioned to a workman in the event the reinstatement ordered in his favour by the Industrial adjudicator is stayed/suspended by the superior courts. It is, therefore, a beneficial provision meant to enable the industrial worker to tide over such crisis as may be caused by the interim suspension of an award directing his reinstatement in service. A beneficial provision in the statute must receive a liberal rather than a constricted interpretation of the courts. The word 'reinstatement' is simple terms signify a return to service and therefore would ordinarily have relevance only in a situation where a workman is discharged, dismissed or terminated. A beneficial provision in the statute must receive a liberal rather than a constricted interpretation of the courts. The word 'reinstatement' is simple terms signify a return to service and therefore would ordinarily have relevance only in a situation where a workman is discharged, dismissed or terminated. This, in fact, is the argument of Sri Sen, learned Counsel for the management, who has in this regard placed reliance on a judgment of the Calcutta High Court reported in Hemanta Kumar Bhattacharjee v. Union of India and Ors. AIR 1958 Cal 239 . 8. It may be useful at this stage to notice the meaning ascribed to the word 'reinstatement'. In this regard, reference may be made to the Oxford English Dictionary where the word 'reinstate' has been defined to mean "1. to reinstall or reestablish (a person or thing in a place, station, condition, etc.) 2. to restore to its proper or original state; to instate afresh." Similarly, in Black's Law Dictionary the word 'reinstate' has been defined as "to place again in a former state or position; to restore." 9. In the present case the workman concerned was transferred from one Tea Estate in Assam to another Tea Estate in Tripura. The transfer of the petitioner has been held to be invalid and unjustified by the Industrial Court by passing the impugned Award. The impugned Award further directed that the workman concerned should be posted in his earlier post of Accounts Clerk in the Shyamguri Tea Estate with all back wages. A reasonable reading of the Award in the context of the object sought to be achieved by Section 17B of the Act leaves the court satisfied that though expressly the word reinstatement is not used anywhere in the Award the effect of the Award is virtually to reinstate or re-post the petitioner in his earlier post of Accounts Clerk in the Shyamguri Tea Estate. The above, in the considered view of the court, would meet the requirement of the expressions reinstatement so as to attract the jurisdiction of the court under Section 17B of the Act. 10. There is yet another aspect of the matter. Section 17B of the Industrial Disputes Act cast a statutory obligation on the court to order for payment of the last drawn wages of the workman in the event the conditions precedent prescribed by the statute are met. 10. There is yet another aspect of the matter. Section 17B of the Industrial Disputes Act cast a statutory obligation on the court to order for payment of the last drawn wages of the workman in the event the conditions precedent prescribed by the statute are met. It cannot be said that dehors the provisions of Section 17B the court is powerless to mould its interim relief by staying the operation of an award of the Labour Court and at the same time directing payment of the last drawn wages of the workman. Such a power is inherent in the court and what has been done by the amendment of the Act is only to cast a mandatory obligation on the courts to so act if the conditions prescribed by the statute are so met. Even from the aforesaid standpoint this court will not be powerless to grant the interim relief of the last drawn back wages to the workman 11. Coming to the last point at issue i.e. whether the workman was gainfully employed, what this court finds is that there is a clear and categorical denial of the workman of the said fact in the application filed. The affidavit in support of the aforesaid statement is however sworn by an office bearer of the Union and not by the workman himself. This, in the considered view of the court, would not be fatal, particularly, in the context of the fact that the workman was represented by the Union at all stages of the proceedings before the Industrial Court. The requirement of filing an affidavit by the workman as stipulated by Section 17B of the Act must, therefore, be understood to have been substantially met. That apart, in the reply affidavit of the workman submitted in the Miscellaneous case the allegation of gainful employment, at any relevant point of time, has been specifically denied by the workman himself. 12. In the above facts, I am of the view that the prayers made in this Misc. Case should be allowed. The impugned Award dated 31.8.2005 shall remain suspended subject to the condition that the workman is paid his last drawn wages by the management. Such payment will be made with effect from the date of the impugned Award, i.e., 31.8.2005. 13. Consequently, in the light of the foregoing discussions, this Miscellaneous application is allowed as indicated above. Application allowed.