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2022 DIGILAW 45 (KER)

Lourdes Hospital, Kochi v. State of Kerala

2022-01-13

ALEXANDER THOMAS, VIJU ABRAHAM

body2022
JUDGMENT : ALEXANDER THOMAS, J. 1. The appellant herein has filed the instant Writ Petition (Civil), W.P. (C) No. 27742/2020 before this Court with the following prayers: “(i) Issue a writ of certiorari or appropriate writ, order or direction calling for the records leading to Ext.P3 and quash the same. (ii) Issue such other appropriate writ, order or direction that may be deemed to be just and equitable in the facts and circumstances of the case.” 2. The writ petitioner/writ appellant-Employer has challenged the legality and correctness of the impugned Ext.P-3 award dated 24.12.2018 rendered by the Labour Court, Ernakulam on I.D. No. 27/2014, whereby it was ordered that the impugned order of dismissal of the workman (R2 herein) was found to be illegal and unlawful and the management was directed to re-instate the workman, but without back-wages. The above writ petition was filed before this Court on 09.12.2020. The learned Single Judge at the admission stage itself has granted an interim order directing the stay of the operation and enforcement of the impugned Ext.P-3 award. Later, the respondent-workman has entered appearance through his learned counsel and has filed I.A. No. 1/2021 in the said W.P. (C) No. 27742/2020 stating that he has not been employed in any establishment, during the relevant period and that his last drawn wages at the time of his termination from service was Rs. 8,500/- p.m. and that he is statutorily entitled for getting wages in terms of the provisions contained in Section 17-B of the Industrial Disputes Act, 1947. The said application filed by the workman for Section 17B wages has been allowed by the learned Single Judge, as per the impugned order dated 22.11.2021 in I.A. No. 1/2021 filed by the respondent-workman in W.P. (C) No. 27742/2020. It is this interim order rendered by the learned Single Judge on 22.11.2021 granting Section 17-B wages to the workman that is under challenge in the instant intra court appeal filed under Section 5(i) of the Kerala High Court Act, at the instance of the writ petitioner-Management/employer. 3. Heard Sri. Enoch David Simon, learned Advocate instructed and assisted by Ms. Suzanne Kurian, learned counsel appearing for the appellant in the WA/petitioner in the W.P. (C), Sri. A. Jayasankar, learned counsel appearing for R2 in the WA/R2 in the W.P. (C) and Sri. 3. Heard Sri. Enoch David Simon, learned Advocate instructed and assisted by Ms. Suzanne Kurian, learned counsel appearing for the appellant in the WA/petitioner in the W.P. (C), Sri. A. Jayasankar, learned counsel appearing for R2 in the WA/R2 in the W.P. (C) and Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for R1 (State) in the WA/R1 in the W.P. (C). 4. As indicated hereinabove, the Labour Court, Ernakulam, as per the impugned Ext.P-3 award rendered on 24.12.2018 on I.D. No. 27/2014, has found that the termination from service imposed on the workman by the management is illegal and unlawful and that the management should re-instate the workman in service, but without back-wages. The claim for wages under Section 17-B of the Industrial Disputes Act, 1947 has now been allowed by the learned Single Judge as per the impugned order. It is this interim order that is under challenge before us. 5. One of the prime contention raised by the learned counsel appearing for the appellant-management is that even going by the materials before the Labour Court, it can be seen that the respondent-workman has been working in the optical shop owned by his wife and further that, he is continuing to get rental income from two rooms owned by him and that this would clearly show that the workman was employed in his wife's optical shop and even otherwise, he is having a source of income and therefore, the jurisdictional facts under Section 17-B of the Industrial Disputes Act, are not satisfied in this case and that the contrary view taken by the learned Single Judge, as per the impugned interim order, is illegal and unreasonable. 6. Per contra, the learned counsel appearing for the respondent-workman would urge that the workman has filed I.A. No. 1/2021 in the instant W.P. (C) along with the supporting affidavit, wherein it has been sworn by him that he is not having any employment in any establishment, either during the period of pendency of the case before the Labour Court or at any point of time including the period during the pendency of the present writ proceedings. Further that, at any rate, he is not having any employment during the period of the pendency of the writ proceedings, which alone is relevant for the purpose of determining the right claimed under 17-B of the ID Act and that his last drawn wages is Rs. 8,500/- p.m. etc. and therefore, the impugned interim order granted by the learned Single Judge, is not amenable for any interference at the hands of this appellate Court, as the same cannot be said to be illegal or unreasonable in any view of the matter. 7. The learned counsel appearing for the appellant has placed reliance on the judgment of a learned Single Judge of the Delhi High Court in the case in NNS Online Pvt. Ltd. vs. Government of National Capital Territory of Delhi and Others, MANU/DE/2447/2021, as per the judgment rendered on 21.09.2021 in W.P. (C) No. 2726/2020. Per contra, the learned counsel for the respondent-workman has placed reliance on various judgments as in Jayaraman vs. Quilon Gas Service, 1995 (1) KLT 633 and Commandant, Defence Security vs. Secretary, N.C.C.G.U.E. Assn. 2001 (2) KLT 104 (DB), etc. 8. We have heard both sides in extenso and have considered the rival contentions and have perused the pleadings and materials on record. At the outset, it may be pertinent to refer to the provisions contained in Section 17-B as well as the objections and reasons which prompted the Parliament in engrafting the provisions, as per Section 17-B of the Industrial Disputes Act. The objects and reasons for introduction of Section 17-B of the ID Act are as follows: “When Labour Courts pass awards of reinstatement, these are often contested by an employer in the Supreme Court and High Courts. 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.” 9. 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.” 9. Section 17-B of the Industrial Disputes Act provides as follows: “Section 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.” 10. It is by now well-established by a catena of rulings of the Apex Court and various High Courts, including this Court that the following conditions should be mandatorily fulfilled to enable the workman to claim wages in terms of Section 17-B of the ID Act during the pendency of writ proceedings to challenge the Labour Court award either before the High Court or before the Apex Court and the said conditions are as follows: “(i) there must be an award by the Labour Court or the Industrial Tribunal directing the re-instatement of the workman concerned. (ii) the challenge against the award should be pending before the High Court or the Apex Court. (iii) the workman had not been gainfully employed in any establishment during the pendency of the litigative proceedings before the High Court or the Apex Court, as the case may be. (ii) the challenge against the award should be pending before the High Court or the Apex Court. (iii) the workman had not been gainfully employed in any establishment during the pendency of the litigative proceedings before the High Court or the Apex Court, as the case may be. (iv) an affidavit shall be sworn by the workman concerned that he is not employed in any establishment receiving adequate remuneration during the pendency of the matter before the High Court or the Apex Court, as the case may be.” 11. Once these vital conditions are cumulatively satisfied, then for permitting the very continuance of the writ proceedings, the court is duty bound to consider and grant the plea for wages under Section 17-B of the ID Act during the pendency of the challenge of the Labour Court award, at least at the rate of the last drawn wages drawn by the workman at the time of termination of his services. Further, it is also well-settled that in rare and exceptional cases, where the workman is able to establish that the wages drawn by him at the time of his termination of service, may not be adequate for his livelihood, etc. then the writ court has even the discretion to order grant of wages, which is higher than the last drawn wages of the workman at the time of his termination from service. It is also well-settled that even if ultimately the Labour Court award is disturbed by the High Court or the Apex Court, as the case may be, in favour of the management and against the workman, still the Section 17-B wages at the rate of the last drawn wages at the time of termination of service, is not to be refunded. At best, in a case where the wages so awarded were at a rate higher than the last drawn wages at the time of termination of service is granted, etc. then where the Labour Court award is finally set aside by the writ court and the verdict is against the workman and in favour of the management, then the writ court may have to consider ordering refund of the differential in the grant of the higher wages concerned. It may be pertinent to refer to one of the landmark judgments of the Apex Court in the subject matter in the case in Ch. It may be pertinent to refer to one of the landmark judgments of the Apex Court in the subject matter in the case in Ch. Saraiah vs. Executive Engineer, (1999) 9 SCC 229 , wherein it has been held as follows in Para No. 3 thereof as follows: “3. Having examined the provisions of S.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 S.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.....” 12. While construing the provisions in Section 17-B of the ID Act, courts will have to keep in mind the legislative policy enunciated by the Parliament in the engraftment of beneficial provision like Section 17-B of the ID Act and it is not the mandate of Section 17-B that the workman should not involve in any activity to make both his ends meet during the period he is to kept out of employment or that he should be deprived of all incomes altogether and merely because the workman engaged in some activity or occasion to eke out a livelihood, so long as it is not an employment under any establishment, it will not in any manner deprive him of the statutory benefits of Section 17-B. Otherwise it would amount to holding that the workman will have to literally starve or beg or borrow money from others. In that regard, it is pertinent to refer to a decision of this Court in the case in Jayaraman vs. Quilon Gas Service, 1995 (1) KLT 633 , wherein the employer contented that the workman is not entitled to get the benefits of Section 17-B of the ID Act, as he owns two autorikshaws and that he is having income while being employed in a garment making unit owned by his wife and that he has substantial immovable properties, etc. This Court rejected those objections of the employer and has held as follows in Jayaraman's case (supra) in Para Nos. 7 and 8 thereof as follows: “7. This Court rejected those objections of the employer and has held as follows in Jayaraman's case (supra) in Para Nos. 7 and 8 thereof as follows: “7. The question whether a workman running a tea shop and earning income would be entitled to the benefits under S.17-B was considered in Management, Hindustan Machine Tools Ltd. vs. Judge, Labour Court and Another, 1992 (1) LLJ 494 where the Rajasthan High Court held that to disentitle a workman the benefit of S.17-B it should be established that he was employed under an establishment and mere carrying on an activity to make both ends meet will not deprive him of the benefit. Workman who was engaged in any activity or in some avocation to eke out a livelihood, so long as it is not employment under any establishment cannot be denied of the benefit. To deny the benefit it must certainly be established that he was gainfully employed in some establishment during the pendency of the proceedings before the High Court or the Supreme Court and during that period he was receiving adequate remuneration. 8. Despite the counter-affidavit, there is no acceptable evidence to hold that the appellant was employed in the garment making unit of his wife. Assuming that he was so employed there is hardly any evidence with regard to the adequacy of the remuneration which he had obtained from that concern. Even if it is assumed that the appellant was getting some income from autorickshaws as alleged in the counter-affidavit, it would not be sufficient to hold that the proviso to S.17-B attracted.” 13. The abovesaid decision of this Court in Jayaraman's case (supra) has been approved by the Division Bench of this Court in Para No. 9 of the decision in Commandant, Defence Security vs. Secretary, N.C.C.G.U.E. Assn. 2001 (2) KLT 104 (DB). It may be pertinent to refer to the legal principles laid down by the Division Bench of this Court in CDS's case (supra) wherein it has been held in Para No. 12 thereof as follows: “12. To sum up: (i) When the conditions under S.17-B of the Act are satisfied it is mandatory that the High Court or the Supreme Court directs payment of last drawn wages to the workman during the pendency of the proceedings challenging the award for reinstatement before the said courts. To sum up: (i) When the conditions under S.17-B of the Act are satisfied it is mandatory that the High Court or the Supreme Court directs payment of last drawn wages to the workman during the pendency of the proceedings challenging the award for reinstatement before the said courts. (ii) The wages thus paid is in the nature of subsistence allowance and it is not refundable even if ultimately the award is set aside by the court. (iii) But it is open to the High Court or the Supreme Court to order payment of a higher amount than the last drawn wages to the workman if such higher amount is considered necessary in the interests of justice; however in such circumstances appropriate directions should be issued regarding refund or recovery of the excess amount in the event of the award being set aside. (iv) The workman is entitled to receive the last drawn wages during the pendency of the proceedings challenging the award in the High Court or the Supreme Court even if the establishment had been closed during the period of the pendency of the proceedings. (v) Merely because a workman is engaged in some activity or in some avocation to eke out his livelihood the benefit under S.17-B of the Act cannot be denied. Such denial is possible only if it is proved that the workman is gainfully employed in some establishment receiving adequate remuneration during the pendency of the proceedings before the High Court or the Supreme Court. (vi) The directions for payment of last drawn wages has to be issued even if the employer has not prayed for staying the operation of the award; that is a condition precedent, once the other conditions are satisfied, for the pendency of the proceedings challenging the award before the High Court or the Supreme Court. Thus even if the award is not stayed but the Writ Petition challenging the award is admitted, during the pendency of the said proceedings the workman is entitled to receive the last drawn wages during the pendency of the proceedings. (vii) The entitlement of the workman to receive last drawn wages is only during the pendency of the challenge of the award before the High Court or the Supreme Court and not from the date of the award. (vii) The entitlement of the workman to receive last drawn wages is only during the pendency of the challenge of the award before the High Court or the Supreme Court and not from the date of the award. (viii) The expression “full wages last drawn” means the wages which were drawn by the workman at the time of termination of service and not the wages which would have been drawn by the workman if he had continued in service.” 14. We have considered the rival pleas and examined the facts of the case in the light of the provisions contained in Section 17-B of the Industrial Disputes Act. The workman in his sworn affidavit before this Court has stated that he is not employed in any establishment during the period of pendency of the present writ proceedings and that his last drawn wages prior to his termination from service was Rs. 8,500/- p.m. There is no dispute about the latter aspect regarding the last drawn wages as above. The main objections raised by the appellant-management to the plea for such statutory wages are those contained in Para Nos. 4 and 5 of the counter affidavit filed by them to oppose the plea in I.A. No. 1/2021 filed by the workman in the above W.P. (C) for grant of Section 17B wages. The said averments in Para Nos. 4 and 5 of the said counter affidavit of the management filed in the above W.P. (C) are as follows: “4. Before adverting to the specific averments contained in the above petition certain facts ought to be brought to the attention of this Hon'ble Court in order to have a proper adjudication of the above dispute in hand. It is trite law that a claim under Section 17B for payment of full wages last drawn by the employee cannot be granted, if it is proved that the employee has been employed elsewhere and had been receiving adequate remuneration during the said period. Even though by Ext.P3, the 2nd respondent was directed to be reinstated back into the service, the claim for back wages was not paid since, it is proved in evidence that the (sic) he was working elsewhere and that he was receiving adequate remuneration during the said period. In fact the 2nd respondent herein along with his wife owns an optical shop within the Ernakulam District. In fact the 2nd respondent herein along with his wife owns an optical shop within the Ernakulam District. A true copy of the photograph of the optical shop owned by the 2nd Respondent is produced and marked as Additional Exhibit P10. A true copy of the visiting card of the 2nd Respondent is produced and marked as Additional Exhibit P10(a). 5. It is also pertinent to point out that the 2nd Respondent himself had deposed before the Labour Court that he has been working at the optical shop of his wife subsequent to being terminated by the petitioner and that he has been receiving monthly rent towards 2 shop rooms rent out by him. A true copy of page 20 of the deposition of the 2nd Respondent dated 21.11.2016 in I.D. No. 27/2014 on the files of the Labour Court at Ernakulam is produced and marked as Additional Exhibit P11. A readable copy of Ext.P11 is produced and marked as Additional Exhibit P11(a). A true copy of the English translation of Ext.P11 is produced as Additional Exhibit P11(b).” 15. It is asserted by Sri. Enoch David Simon Joel, learned Advocate instructed and ably assisted by Ms. Suzanne Kurian, learned counsel appearing for the appellant that the crucial fact of the matter regarding the employment of the workman in his wife's optical shop has been candidly admitted by him in the deposition tendered before the Labour Court, etc. and our attention has been drawn to the contents of Ext.P-11 and its translated version given on Page Nos. 104-106 of the paper book of this appeal. It is also urged that it is the indisputable fact of the matter that the workman is continuing to get rental income from two shop rooms owned by him. Hence, it is urged that these are sufficient materials which would clearly show that the workman was gainfully employed during the relevant period and that he is having sufficient means of livelihood and he cannot be said to be entitled for the statutory wages in terms of Section 17-B of the Industrial Disputes Act during the pendency of the present writ proceedings, etc. We have anxiously considered the plea based on Ext.P-11 deposition. The relevant part of the deposition in Malayalam language as contained in Page No. 105 of the paper book of this appeal tendered by the workman dated 21.11.2016, is as follows: 16. We have anxiously considered the plea based on Ext.P-11 deposition. The relevant part of the deposition in Malayalam language as contained in Page No. 105 of the paper book of this appeal tendered by the workman dated 21.11.2016, is as follows: 16. The English version thereof given on Page No. 106 of the paper book of this appeal, reads as follows: “Rent from two shop rooms, which are rented out is being received. When my wife was not keeping well, I used to go there for providing help. I am not aware as to the present management of the Optical Shop. Are you working there in a manner which causes Customers to raise complaints? (Question) False (Answer). I put it to you that, you had initially admitted before the management about the complaints raised against you, however later the same was denied (Question). False (Answer)........” 17. A reading of Ext.P-11 deposition of the workman would show that the admission made by him is that he has two shop rooms owned by him, for which he is deriving rental income and further that, his wife has an optical shop, meaning thereby that his wife is the proprietor of the optical shop. Further that, during the period when the wife is not keeping well, he used to go to the optical shop to help her, etc. There is a further statement in the deposition that the workman is not aware as to the present management of the optical shop. We are told that the aspect that he is not aware as to the present management of the optical shop, etc. is not in relation to the optical shop owned by the workman's wife, but presumably it can be in relation to the optical shop in question run by the appellant-management, etc. Hence, the crucial aspect of the matter discernible from Ext.P-11 deposition is that it is admitted by the workman that his wife is owning an optical shop and that he used to go to that shop for providing help to her whenever she is not keeping well. Hence, the crucial aspect of the matter discernible from Ext.P-11 deposition is that it is admitted by the workman that his wife is owning an optical shop and that he used to go to that shop for providing help to her whenever she is not keeping well. Hence, for the limited purpose of appreciation of the present matter, we feel that what has been admitted is that the wife indeed owns an optical shop and she is the proprietor of the optical shop and that whenever she is not keeping well, the workman used to go there to help her in her business. We have to bear in mind that Ext.P-11 deposition is rendered on 21.11.2016, well before the rendering of the impugned Ext.P-3 award by the Labour Court on 24.12.2018. Even if for the sake of argument, we assume that the factual scenario narrated in Ext.P-11 is prevalent even now, the same cannot amount to an admission by the workman that he is having employment in the said optical shop or that he is having gainful employment, etc. Further, the other admission made by the workman is that he owned two shop rooms and that he is getting rental incomes from those shop rooms. Even if it is assumed that the same position continues, it has to be borne in mind that the workman was getting rental income even during the abovesaid period of his employment and the mere fact that he was getting rental income after the termination of employment, cannot be a factor to defeat the right to statutory wages in terms of Section 17B of the ID Act. As of now, there is no admission by the workman that he is employed in any establishment or that he is employed in the optical shop room of his wife during the pendency of the W.P. (C). If the factual scenario in Ext.P-11 is assumed to be prevalent even now, at best it only states that he used to go to his wife's optical shop room to help her in her business whenever she is not keeping well. The same cannot be treated as a material for the writ court to conclude that the workman is employed in an establishment or even that he is having a gainful employment, so as to dis-entitle him from statutory wages in terms of Section 17-B of the Industrial Disputes Act. The same cannot be treated as a material for the writ court to conclude that the workman is employed in an establishment or even that he is having a gainful employment, so as to dis-entitle him from statutory wages in terms of Section 17-B of the Industrial Disputes Act. In this perspective of the matter, the learned Single Judge cannot be seriously faulted for arriving at the considered view that the workman is entitled for statutory wages in terms of Section 17-B of the ID Act. At any rate, the said view of the learned Single Judge as per the impugned interim order cannot be seen by us in any manner as grossly illegal or manifestly unreasonable, etc. Accordingly, no grounds in public law remedy are made out so as to interfere with the matter in exercise of the appellate powers conferred on this Court. 18. As indicated hereinabove, the learned counsel appearing for the appellant has placed reliance on the judgment of a learned Single Judge of the Delhi High Court in the case in NNS Online Pvt. Ltd. case (supra), wherein endeavour has been made by the learned Single Judge to hold that even if the workman is not employed in an establishment, so long as he/she is having gainful employment by way of self employment, etc. and there is substantial income, etc. then the same may disentitle the workman for claim of statutory wages in terms of Section 17-B of the Industrial Disputes Act. In that case, the workman concerned was shown to be running a highly successful newspaper establishment, etc. 19. Per contra, Sri. A. Jayasankar, learned counsel appearing for the respondent-workman has said that the distinction between the employer and an establishment, as envisaged in Section 17-B of the ID Act and gainful employment by the self employment, etc. cannot be treated to an equal level and the Parliament has very carefully and guardedly used expression “employee in an establishment” and the words used in Section 17-B are not that the workman is gainfully employed by way of self employment, etc. and hence, the view expressed by the learned Single Judge of the Delhi High Court may not be in consonance with the statutory provision contained in Section 17-B of the ID Act. 20. and hence, the view expressed by the learned Single Judge of the Delhi High Court may not be in consonance with the statutory provision contained in Section 17-B of the ID Act. 20. After hearing both sides, we are of the view that the factual scenario of the present case is entirely different from the case decided by the learned Single Judge of the Delhi High Court in NNS Online Pvt. Ltd. case (supra). The gainful employment pleaded in NNS Online Pvt. Ltd. case (supra) was the claimed self employment of the workman who was shown to be running a highly successful newspaper establishment, etc. Hence, there is no necessity to decide as to whether the concept of gainful employment by way of self employment, would also partake within the ingredients of Section 17-B of the Industrial Disputes Act. The said issue does not arise for consideration in the facts and circumstances of the instant case. 21. However, we queried both sides as to whether both sides are ready for the final disposal of the main matter in the W.P. (C). Both sides are eager to ensure the final disposal of the main matter. Hence, it is ordered that the Registry may list the W.P. (C) before the Single Bench concerned, which is dealing exclusively with hearing matters and not with the admission matters and listing may be made within the next 6 to 8 weeks or so, depending upon the workload. All endeavours may be made to ensure the final disposal of the main matter in the W.P. (C), without much delay. 22. The upshot of the above discussion is that no interference is called for in the impugned interim order rendered by the learned Single Judge. 23. With these observations and directions, the above Writ Appeal will stand dismissed.