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Calcutta High Court · body

2017 DIGILAW 114 (CAL)

Abp Limited v. State Of West Bengal

2017-01-24

MIR DARA SHEKO, RAKESH TIWARI

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JUDGMENT : 1. Heard learned Counsel for the petitioner on application under Section 17B of the Industrial Disputes Act, 1947. This Section provides for payment of full wages to workman, pending proceedings in higher courts. It reads thus : "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." 2. By means of affidavit along with CAN application No. 7335 of 2016 respondent no. 3 in paragraphs 6 and 7 has averred that he has remained unemployed since the date of his illegal termination by the opposite party/appellant and is, therefore, entitled to get benefit of Section 17B of the Industrial Disputes Act, 1947 on his last drawn wages Rs. 1250/- in January 1992. 3. Learned Counsel for the appellant would argue that the respondent No.3 was not a workman as defined in Section 2s of the Industrial Disputes Act, 1947, as he was an apprentice engaged under the Apprenticeship Act, 1961. He further submits that since the respondent no.3 was not an apprentice under the definition of workman as defined under Section 2s of the Industrial Disputes Act, 1947, he is not entitled to full wages last drawn by him under Section 17B of the Industrial Disputes Act, 1947 which in the instant case would not be applicable. 4. From records we find that the respondent no. 3 was engaged as an apprentice in the appellant Establishment on stipend, subject to certain terms and conditions which are : "...........01. Your training will be for a period of 4 years (i.e. 48 months) from the date of joining. 02. During the period of your training you shall be paid stipend at the following rates :- i. 1st year @ Rs. 600/- per month (consolidated) ii. 2nd year @ Rs. 750/- per month (consolidated) iii. 3rd year @ Rs. 900/- per month (consolidated) iv. 02. During the period of your training you shall be paid stipend at the following rates :- i. 1st year @ Rs. 600/- per month (consolidated) ii. 2nd year @ Rs. 750/- per month (consolidated) iii. 3rd year @ Rs. 900/- per month (consolidated) iv. 4th year @ Rs. 1050/- per month (consolidated) No stipend will be paid for the period you are absent from duty. 03. You will be allowed 14 days' leave with pay on completion of 12 months training. All time lost must be made up when completing the course. 04. The management may, at its discretion extend or reduce the period of your training in consideration of special circumstances. 05. On satisfactory completion of your training your case will be reviewed for employment as Junior Clerk or in any other position suited to your training and ability initially as a probationer in the said position. 06. You may be transferred from one job or section or department to another or to any of the branches or subsidiaries or offices of the company anywhere in India...." 5. Perusal of the terms and conditions of the engagement order quoted above shows that respondent No.3 was engaged as 'trainee' only, on a consolidated amount, and was not appointed as 'workman' against any post subject to his satisfactory work and that his service could be terminated during or at the end of his termination period. 6. Admittedly, because of his unsatisfactory work respondent no. 3 was not absorbed as workman by the employer in his establishment as per terms of engagement on the establishment. His services were terminated on non-confirmation of his status from trainee to workman. He thus falls short of the status of workman as defined under Section 2s of the Industrial Disputes Act, 1947. Whether a person engaged as a trainee has acquired the status of a workman or not, would depend upon case to case depending of the terms and conditions of his engagement as well as the rules applicable to the establishment. It appears from record that respondent No. 3 was apprised by the employer in writing from time to time about his unsatisfactory work, hence his claim that his status in the establishment was of a workman is incorrect and against the record by the employer as workman for his non-absorption. It appears from record that respondent No. 3 was apprised by the employer in writing from time to time about his unsatisfactory work, hence his claim that his status in the establishment was of a workman is incorrect and against the record by the employer as workman for his non-absorption. We find from the award that the Labour Court had proceeded with reference on a presumption that respondent no.3 had been "appointed as a workman" and had, therefore, reinstated him with full back wages in the establishment. As such it is clear from the engagement letter of respondent No. 3 that he was neither appointed nor was paid any wages as a workman for the training period. Rather he was paid stipend for the period during his training. The Labour Court could not have conferred upon him status of a permanent workman by the award which he was not enjoying while working as trainee. 7. Section 17B of the Industrial Disputes Act will come into play only in case of a workman or a trainee who falls under the four corners of Section 2s to the exclusion of the definition of a workman under the Apprenticeship Act, 1961. It is true that respondent no. 3 was not appointed under the Apprenticeship Act, 1961 but as a trainee in the establishment on payment of stipend. He was not at all appointed in the appellant's industrial establishment as workman. Having not been in the service as workman by the employer or appointed as such he falls just short of the status of a regularly appointed workman in the establishment for having not acquired status of workman on fulfilment of terms and conditions of his training. Hence respondent no. 3 in the instant case was not a workman at all in the establishment within the meaning of Section 2s for application of Section 17B of the said Act. The apprentice training of respondent No. 3 came to an end in 1992 and he has not actually ever worked as a workman in the establishment thereafter. Therefore, his claim for minimum wages also is not sustainable as payment of minimum pay scale or wages could be only in the circumstances that had he been working in the establishment as workman. Therefore, his claim for minimum wages also is not sustainable as payment of minimum pay scale or wages could be only in the circumstances that had he been working in the establishment as workman. The full wages last drawn by a person under Section 17B of the Act is in the nature of sustenance allowances where an employee under suspension, is not allowed to work and would be entitled benefits of arrears of wages/salary only on the result or final outcome of the departmental on Court proceedings. 8. In the instant case the appeal is pending. There is no finality attached to the judgment of the learned Single Judge. Hence for all these reasons, we are of the considered view that a prima facie case has been made out by the appellant for stay of the operation of the order passed in Miscellaneous Case and for rejecting the CAN application being CAN No. 7335 of 2016. We further observe that this is only an interim order, it is subject to final hearing of the matter. 9. Accordingly, for all the reasons stated above CAN application being CAN No. 6995 of 2016 for stay is allowed. 10. CAN application No. 7335 of 2016 is rejected. 11. Department is directed to take steps for preparation of the paper book immediately.