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2022 DIGILAW 978 (CAL)

Parvez Alam v. Vijay Shree Pvt. Ltd.

2022-07-08

SUVRA GHOSH

body2022
JUDGMENT Suvra Ghosh, J. - The present application under section 17B of the Industrial Disputes Act, 1947 is filed by the applicant/respondent no. 3 praying for a direction upon the opposite party/ writ petitioner to pay the last drawn salary to the applicant pending disposal of the writ petition. 2. The applicant/employee was terminated from service with effect from 1st November, 2011 by the employer against which the applicant raised an industrial dispute which was referred to the Industrial Tribunal for adjudication. By an order dated 29th September, 2021 the learned Tribunal allowed the prayer of the applicant imposing cost of Rs. 20,000/- on the opposite party/company. The operative portion of the order is reproduced below:- 'Hence, it is ORDERED that the Case No. 04 of 2012 under Section 10(1B)(d) of The Industrial Disputes Act, 1947 is allowed on contest against the O.P. company with a cost of Rs. 20,000.00 It is hereby declared that the order of termination of service dt. 01.11.2011 passed against the petitioner by the O.P. company is illegal, unjustified and void. It is also declared that the petitioner is also entitled to be reinstated in his previous service as on 29.05.2011 with full back wages and the O.P. company is directed to pay the full back wages to the petitioner from 30.05.2011 till his reinstatement with a compound interest of 10% p.a on the entire arrear amount of back wages and the O.P. company is also directed to pay this entire amount to the petitioner within 30 days from this date of order. The O.P. company is directed to reinstate the petitioner on 01.11.2021 in his previous job, in default, the petitioner is at liberty to take legal action against the O.P. company.' 3. The opposite party filed the present writ petition on 27th January, 2022 challenging the said order. 4. The O.P. company is directed to reinstate the petitioner on 01.11.2021 in his previous job, in default, the petitioner is at liberty to take legal action against the O.P. company.' 3. The opposite party filed the present writ petition on 27th January, 2022 challenging the said order. 4. Section 17B of the Industrial Disputes Act, 1947 is set out:- '[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 of part, as the case may be.]' 5. The applicant has claimed full wages last drawn by him from the date of award till disposal of the writ petition. It is also submitted on affidavit that the applicant was not employed for gain in any establishment during the entire period of pendency of the proceedings before the Labour Court or this Court. 6. Learned Counsel for the applicant has placed reliance on the authorities in Dena Bank v/s. Kiritikumar T. Patel reported in (1999) 2 Supreme Court Cases 106, Sandhya Baul v/s. Director of Panchayat and Another and between Anguswamy M. And Panchayat Samiti, Rangat reported in (2006) ILLJ 637 Cal and Ashok Hotel v/s. Government of NCT of Delhi and Others reported in 2006 (1) LLJ 317 in support of his contention. 7. 7. Per contra, learned counsel for the opposite party has raised two fold objections: - Firstly, the last drawn wages ought to be paid from the date of filing of the writ petition and not from the date of award and secondly, the applicant has adduced evidence before the Labour Court disclosing his employment and some earning during the relevant period. Learned counsel has relied upon the authority in Singer India Limited and Others v/s. State of West Bengal and Others reported in (1999) 1 Cal HCN 96. 8. With regard to the entitlement of the applicant to receive the last drawn wages, the applicant adduced evidence before the learned Tribunal wherein he stated on oath as follows: - 'At present, I am engaged in small work and I earn Rs. 50/100 per day whenever I get work.' It is not in dispute that the last drawn wages of the applicant was Rs. 7987.20/- per month. In view of the nature of employment of the applicant and remuneration received therefrom during the relevant period, it cannot be said that he was employed for gain in any establishment during such period or received adequate remuneration therefrom. The applicant is, therefore, entitled to receive full wages last drawn by him from the opposite party/petitioner. 9. Section 17B of the Act of 1947 entitles the applicant/employee to full wages last drawn by him during the pendency of the proceedings before the High Court. The objects and reasons for enacting the said provisions, as enumerated in the judgment in Dena Bank (supra) are 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.' 10. In the said judgment, besides interpreting the expression 'full wages last drawn' as stated in section 17B, the Hon'ble Supreme Court has observed that the workman is entitled to draw full wages last drawn from the date of award and not the date of filing of the proceedings before the High Court. In the said judgment, besides interpreting the expression 'full wages last drawn' as stated in section 17B, the Hon'ble Supreme Court has observed that the workman is entitled to draw full wages last drawn from the date of award and not the date of filing of the proceedings before the High Court. The authorities in Sandhya Baul (supra) and Ashok Hotel (supra) have echoed the observation of the Hon'ble Supreme Court in holding that under section 17B of the Act of 1947, the employee is entitled to back wages from the date of the award of the Tribunal and not from the date of filing of the proceedings before the High Court or the Supreme Court. 11. In view of the observation of the Hon'ble Supreme Court, this Court is inclined to hold that the applicant is entitled to full wages last drawn by him from the date of award till the disposal of the writ petition. The employer/ writ petitioner is directed to pay the applicant full wages last drawn by him from the date of the award till disposal of the writ petition within one month from this date. 12. The Application being CAN 1 of 2022 is disposed of. 13. There shall however be no order as to costs. 14. 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