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2013 DIGILAW 94 (CAL)

Canning Farms Pvt. Ltd. v. State of W. B.

2013-02-13

SAMBUDDHA CHAKRABARTI

body2013
JUDGMENT By an award dated March 24, 2011 passed in Case No. 51 of 2003 the learned Judge of the Second Labour Court, Kolkata, had, inter alia, allowed the application under Section 10(1B)(d) of the Industrial Disputes Act, 1947 (hereinafter referred to as “Act”, for short). By the said award the court below had declared the dismissal order issued by the Company to be unlawful and illegal and directed the Company to reinstate the applicant, the workman, in service with full back wages and other consequential benefits admissible as per the norms of the Company within a period of sixty days from the date of the passing of the award. The company had filed the present writ petition against the said award. 2. A learned Single Judge of this Court after hearing the writ petitioner-company as well as the respondent No.6, i.e. the workman, by an order dated August 02, 2011,had, inter alia, granted stay of the operation of the impugned award till the disposal of the writ petition. 3. The workman, i.e. the respondent No.6, had taken out an application being CAN 10688 of 2011 praying for an order directing the writ petitioner-company to continue the workman in service and for an appropriate order for payment of money at an early date. This application was affirmed on November 22, 2011. Subsequently, the workman also filed a supplementary affidavit affirmed on September 27, 2012 alleging, inter alia, that after the dismissal from service of the Company, she had not been engaged as an employee in any establishment till the date of affirmation of the affidavit and she prayed for payment of money as awarded by the court below as well as an order in her favour under Section 17B of the Act. The writ petitioner-company has opposed this application by filing an affidavit. 4. Heard Mr. P. K. Drolia, the learned Advocate appearing for the applicant-respondent No.6. He has placed the relevant portion of the impugned award as well as the supplementary affidavit affirmed by the workman. 5. Mr. The writ petitioner-company has opposed this application by filing an affidavit. 4. Heard Mr. P. K. Drolia, the learned Advocate appearing for the applicant-respondent No.6. He has placed the relevant portion of the impugned award as well as the supplementary affidavit affirmed by the workman. 5. Mr. Soumya Majumder, the learned Advocate appearing for the writ petitioner-company, had vehemently opposed this application on the ground that the workman was never a permanent employee of the writ petitioner-company and the award passed by the learned Judge of the court below is not made sustainable inasmuch as the most vital issue that ought to have been raised by the court below has not been raised. Mr. Majumder submits that the crux of the dispute between the writ petitioner-company and the workman was whether the termination of the workman was bad and the court below not having raised this as an issue could not come to the conclusion as it did. 6. Mr. Majumder further submits that this affidavit of the workman has not been filed according to law. In support of his contention, he has relied on a judgment in the case of U. P. State Bridge Corporation Ltd. -vs- Maharashtra General Kamgar Union, reported in 2008 III L.L.J. 507 (Bombay) for a proposition that the affidavit which is required to be filed by workman under Section 17B of the Act should declare the required facts by merely saying that a workman was not employed in any establishment would not be sufficient compliance of Section 17B. Mr. Majumder relied on paragraph 9 of the said judgment which says that the court has to record satisfaction that an affidavit in accordance with the provisions of Section 17B has been filed wherein besides disclosing that the workman was not employed during the relevant period, the affidavit should state as to the efforts put in by the workman to gain employment and how the workman is able to subsist. Mr. Majumder further referred to paragraph 17 of the said judgment which requires an affidavit under Section 17B to disclose that he could not be employed despite his efforts. 7. Mr. Majumder further referred to paragraph 17 of the said judgment which requires an affidavit under Section 17B to disclose that he could not be employed despite his efforts. 7. The Division Bench of the Bombay High Court further held that it would be for the workman to state categorically that he was not gainfully employed and was not in self-gainful employment which dependent on the facts and circumstances of the case would be a consideration before the Court to pass a directive for payment of wages and determination of such wages even at the interim stage. 8. I have considered the respective submissions made by the learned Advocates and have gone through the application and the affidavits filed in connection with the present application as well as the award passed by the court below. It has been very specifically stated by the workman in paragraph 11 of the affidavit that after her dismissal from service of the company, she has not been employed by any establishment till the date of the affirmation of the affidavit. The writ petitioner-company, in its counter-affidavit, has practically stated nothing to controvert the allegations of the workman except making an evasive denial of the statements made by her. The counter-affidavit has also not taken any point about the maintainability of the application. On the contrary, all that the petitioner-Company has stated is this the workman cannot get any farthing as she was never an employee of the company and she was engaged only a temporary staff on remuneration basis. 9. The requirement of Section 17B do not lead to making any averment beyond the applicant stated in her affidavit. All that Section 17B of the Act requires is that if the award of reinstatement of any workman by a labour court or tribunal or a national tribunal or in the High Court or in the Supreme Court, the employer shall be liable to pay such workman during the pendency of such proceedings 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. Nothing more is required for the workman to say at this stage. Nothing more is required for the workman to say at this stage. It may be mentioned that in paragraph 9 of the said judgment itself, the Bombay High Court held that the Court has to record satisfaction that an affidavit in accordance with the provisions of Section 17B has been filed. I record the satisfaction that the affidavit filed by the workman is in accordance with Section 17B of the Act. 10. Mr. Majumder, the learned Advocate for the petitioner-company, had vehemently argued that the workman could not prove either in the court below or by an affidavit in this Court that the workman since her dismissal from service was not employed in any establishment. To accept Mr. Majumder’s contention it would require to anybody to prove the negative. The law, therefore, merely states that the workman is to file an affidavit to the effect that she was not gainfully employed in any establishment. Nothing more is required to be stated on oath. If the employer wants to take advantage of the provisions contained in the proviso (ii) to the said section, the onus is entirely on them to prove that the workman was employed by any establishment. The provision relating to the satisfaction of the court that such workman had been employed and had been receiving on that remuneration during this period or any part thereof. The employer is not having stated anything – not even specifically controverting the specific statement of paragraph 11 of the affidavit filed by the workman – this allegation has hardly in places. 11. Mr. Majumder’s serious contention about the non-framing of issue is also not sustainable. 12. In the petition of the workman before the court below, she had very specifically stated in paragraph 4 that the writ petitioner-Company herein suddenly reduced her salary and has dismissed her on and from November 2001 without assigning any reason or without any fault of her part. She has also described the action of the writ petitioner-employer has malafide and colourable exercise of the employer’s right which is within the purview of the corrupt practice formulated in the Act. She has also described the action of the writ petitioner-employer has malafide and colourable exercise of the employer’s right which is within the purview of the corrupt practice formulated in the Act. The very specific plea taken by the writ petitioner-company is that by taking advantage of the superior bargaining of the power, the employee was dismissed without affording an opportunity of fair hearing and therefore, its action is against the principles of natural justice and the prayer was to declare the abrupt dismissal as unreasonable and unlawful. 13. Mr. Majumder has drawn my attention to the contrary stand taken by the workman in her letter to the Labour Commissioner. 14. Be that as it may, the writ petitioner-Company had filed its objection to the said petition filed by the workman and had denied the allegations made by her. From a reading of the pleadings in the court below there is absolutely no doubt that the legality of the termination was relevant to the main issue and the parties led evidence and went to the litigation with this issue at the back of their minds. In other words, there were alive to this issue. 15. In the case of Nagubai Ammal & Ors. -vs- B. Samarao & Ors., reported in AIR 1956 SC 593 , a Three-Judge Bench of the Supreme Court had specifically held that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue which was not present to the minds of the parties had not made by adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue though no specific issue had been framed therein and adduced evidence thereto. This decision of the Supreme Court has been followed in a series of judgments thereafter and the ratios still hold good that when parties go to trial alive to the main point that they have to meet and when that appears from the pleadings of the parties and when evidence had been led on that non-framing of issue is not fetal. 16. In this case, after considering the evidence and the pleadings of the parties, the court below has come to a very specific finding. 16. In this case, after considering the evidence and the pleadings of the parties, the court below has come to a very specific finding. It has been very specifically held by the learned Judge of the court below that the cross-examination of P.W.1 did not falsify the claim of the workman that she did not work as an accountant-cum-clerk of the Company. There was no evidence from the side of the opposite-party to show before the labour court that the applicant was engaged for a temporary period. This very specific finding is that the applicant was a workman under the company. It has also come to a conclusion that the management of the Company did not comply with the basic principles of natural justice before dismissing the workman from service. In other words, her termination was declared to be bad. At least, for the limited purpose for which Mr. Majumder has raised this issue and necessitated to the court has come to make this observation. There is no doubt that there were pleading and parties led evidence on that and as such, for the purposes of Section 17B and to deal with the objections raised by Mr. Majumder, I do not think that non-framing of issue is fetal to the proceeding. 17. The purport of Section 17B of the Act is very clear. A Division Bench of this Court in the case of Suresh Mal -vs- S. E. Industrial Pvt. Ltd. reported in 2009(1) C.H.N. 473 had categorically held that once an award is passed by the Labour Court holding the termination from the service of the workman to be illegal and directs reinstatement, the employer is bound to pay the wages last drawn by the workman under Section 17B of the Act during the pendency of any challenge to the award by the employer in the High Court or in the Supreme Court. 18. Such being the position, if we apply the ratio of the judgment to the facts of this case where we equally find that the court below unambiguously has come to a finding that the termination is bad and direct reinstatement, this is not the stage to examine the legality of the award as sought to be done by Mr. Majumder which has necessitated the observation made by me at this stage. The last point taken by Mr. Majumder which has necessitated the observation made by me at this stage. The last point taken by Mr. Majumder is that the affidavit has been belated filed. We cannot lose sight of the fact that the application for appropriate order was filed in the year 2011 itself. Subsequently, in September, 2012 the workman came up with this affidavit that she is not gainfully employed since her dismissal. The non-maintainability of the affidavit on the ground of delay has not been taken anywhere in the counter-affidavit used by the writ petitioner-Company. 19. On the other hand, in the case of Food Corporation of India -vs- Union of India & Ors., reported in 2010(4) C.H.N. (Cal) 1008, an application under Section 17B of the Act was filed that the workman filed an application under Section 17B of the Act in the month of February, 2007 in a writ petition filed in the year 1998 and a learned Single Judge of this Court had directed the employer to pay the benefits under Section 17B of the Act from the date of the dismissal. 20. In such view of the matter, I find that the objections raised by the employer-Company to be entirely misconceived. The workman, i.e. the respondent No.6 to the writ petition is entitled to get a sum equivalent wages last drawn by him month by month from the date of the filing of the writ petition in this Court. By the month of February, 2013 the writ petitioner-Company shall make the payment by such amount by February 25, 2013 and shall go on making the payment each month by the 10th of the month next succeeding until further orders. 21. The arrear from the date of the filing of the writ petition, i.e. from July, 2011 till January, 2013 shall be paid in four equal instalments from the month of March, 2013 and shall be completed by June, 2013. 22. The application and the affidavit filed by the workman are disposed of. It is made clear that the observations made in this order is only for the purpose of Section 17B and on the objections raised by Mr. Majumder.