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2008 DIGILAW 1004 (CAL)

Suresh Mahato v. G. E. Industrial Pvt. Ltd

2008-11-18

S.S.NIJJAR, SANJIB BANERJEE

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JUDGMENT: SINGH NIJJAR, C.J. (1.) SANJIB the conclusion that the opposite party, i.e., the BANERJEE, J. employer has directed to reinstate the applicant with full back wages within sixty days from the We have heard learned counsel for the date of receipt of the order. This award has been parties at length. We have also seen the award challenged by the employer by filing a writ passed by the Labour Court, The Labour Court petition, which is pending before the learned after appreciation of the evidence, has come to single Judge. During the pendency of the writ petition, the appellant-workman filed an application for payment of full wages under the provisions of Section 17-B of the Industrial Disputes Act, 1947. In the application it is stated that the applicant is still unemployed. This application has been rejected by the Trial Court after making reference to the deposition of the appellant-workman. The learned single Judge has concluded that the workman has failed to produce any materials on record to show that he was ever in any employment under the respondents. (2.) We have heard learned counsel for the parties at length. Mr. Bandyopadhyay appearing for the appellant-workman submits that the matter is squarely covered by the judgment of the Supreme Court in the case of Dena Bank v. Kritikumar T. Patel AIR 1998 SC 511 : (1999) 2 SCC 106 : 1998-I-LLJ-1. Reliance was also placed on the judgment of CM. Saraiah v. E.E. Panchayat Raj Department and Another 2000-I-LLJ-23. (3.) On the other hand, learned counsel for the respondent employer has relied on a Division Bench judgment of this Court in the case of Carrit Moran and Co. Pvt. Ltd. v. State of West Bengal and Others 2008-I-LLJ-19 (Cal) in support of the submission that once the Trial Court had come to the conclusion that there was no evidence on record to show that the workman was ever employed by the respondents, it was permissible to deny the benefit of back wages to the workman. In such circumstances Section 17-B would not be applicable. (4.) We have considered the submissions made by learned counsel for the parties. In such circumstances Section 17-B would not be applicable. (4.) We have considered the submissions made by learned counsel for the parties. We are of the considered opinion that law is too well settled to admit any further doubt on the proposition that once an award, is passed by the Labour Court holding that the termination of the services of the workman is illegal and directing reinstatement, the employer is bound to pay the wages last drawn to the workman under Section 17-B during the pendency of any challenge to the award by the employer in the High Court or in the Supreme Court. In the case of Dena Bank v. Kriti kumar T. Patel (supra) it has been clearly held by the Supreme Court as follows 1998-I-LLJ-1 at p.4: "7. It would be convenient at this stage to set out the provisions contained in Section 17-B of the Act which reads as under: 17-B - Payment of full wages to workman pending proceedings in higher Courts. - Where in any case a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full Wages last drawn by him inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court: Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this Section for such period or part, as the case may be. The Objects and Reasons for enacting the said provisions were as follows: "When Labour Courts pass award of reinstatement, these are often contested by an employer in the Supreme Court or High Court. It was felt that the delay in the implementation of the award causes hardship to the workman concerned. The Objects and Reasons for enacting the said provisions were as follows: "When Labour Courts pass award of reinstatement, these are often contested by an employer in the Supreme Court or High Court. It was felt that the delay in the implementation of the award causes hardship to the workman concerned. It was, therefore, proposed to provide the payment of wages last drawn by the workman concerned under certain conditions from the date of the award till the case is finally decided in the Supreme Court or High Courts." 8. It would thus appear that the object underlying the enacting of the provisions contained in Section 17-B is to give relief to the workman in whose favour an award of reinstatement has been passed by the Labour Court and the said award is under challenge in the High Court or this Court. The said relief has been given with a view to relieve the hardship that would be caused to a workman on account of delay in implementation of the award as a result of the pendency of the proceedings in the High Court or this Court. The question for consideration is what is the extent to which such relief has been granted to a workman under this provision? The Objects and Reasons do not indicate an answer to this question and its answer has to be found in the provisions of the enactment. Since the expression full wages last drawn in Section 17-B has been construed by the various High Courts in the decisions referred to above we would briefly refer to the same." The same view has been reiterated by the Supreme Court in the case of CM. Saraiah v. E.E. Panchayat Raj Department and Another (supra) wherein it has been held as follows: "Having examined the provisions of Section 17-B of the Industrial Disputes Act, we are of the considered view that the Court has no jurisdiction to direct non-compliance with the same when the condition precedent for passing an order in terms of Section 17-B of the Act is satisfied, and this being the legislative mandate, the Division Bench of the High Court committed serious error in interfering with the direction of the learned single Judge. We accordingly set aside the impugned order passed by the Division Bench and direct that the order of the learned single Judge requiring compliance with Section 17-B of the Industrial Disputes Act shall be complied with by the employer." The law laid down by the Supreme Court in the aforesaid judgments was not brought to the notice of the Division Bench. (5.) In ,our opinion the judgment of the Division Bench seems to be contrary to the law declared by the Supreme Court in the aforesaid 1 two judgments. We may also observe here that the impugned order herein has been passed by the learned single Judge while considering an application under Section 17-B of the Industrial Disputes Act. The findings recorded by the Trial Court are based on appreciation of evidence which is not the normal course to be adopted in exercise of jurisdiction under Article 226 and 227 of the Constitution of India. It is well settled proposition of law that normally in exercise of jurisdiction under Article 226/227 of the Constitution of India, the Court would not re-appreciate the evidence which has been led by the parties before the Labour Court. The findings of fact can only be over-ruled or substituted in cases where the same has been recorded by the Labour Court without any material in support thereof. (6.) In view of the above, we find merit in the appeal. The appeal is allowed. The order of the learned single Judge is set aside and the management is directed to pay the wages last drawn by the workman on and from the date when the writ petition was filed till date. Let the payment be made from the date of filing of the writ petition within a period of four weeks. The appellant shall also be paid the current wages regularly along with other workman every month.