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2024 DIGILAW 7 (CAL)

R. D. B. Textiles Limited v. State of West Bengal

2024-01-02

RAJA BASU CHOWDHURY

body2024
JUDGMENT : In re: CAN 1 of 2019 1. This is an application filed under Section 17B of the Industrial Disputes Act, 1947 (hereinafter referred to as the “said Act’). 2. The present application, being CAN 1 of 2019 had been taken out by the respondent no.3, immediately after filing of the writ petition. 3. Pursuant to the direction passed by this Court on 10th April, 2019, affidavit-in-opposition to the present application has also been filed by the writ petitioner. Since then, the matter had come up for consideration on 19th December, 2023. Since, the writ petitioner was not represented, the matter was adjourned so as to enable the learned advocate representing the petitioner to present its case. The respondent no.3 was also directed to communicate the said order to the learned advocate representing the petitioner. 4. Mr. Shaw, learned advocate representing the respondent no.3 submits that he had duly communicated the aforesaid order to the learned advocate representing the petitioner. However, the learned advocate representing the petitioner had refused to receive the said notice. He submits that the affidavit of service is not ready. As prayed for, the learned advocate for the respondent no.3 is permitted to file an affidavit of service in course of the day. 5. Although, the matter has come up for consideration today, the writ petitioner still remains unrepresented. However, taking into consideration that the aforesaid application praying for in effect subsistence allowance as provided for in Section 17B of the said Act, has been pending for several years, the same is taken up for consideration ex parte. 6. The original writ petition pertains to a challenge to an Award dated 18th August, 2017, passed by the learned Fifth Industrial Tribunal in Case No.VIII-38 of 2012. It appears that an industrial dispute had arisen between the writ petitioner on the one hand and the respondent no.3 on the other. Such industrial dispute was espoused by Thomas Duf Group Jute Employees’ Union, Victoria Branch. On the basis thereof, the appropriate Government vide order no. 725-LR/IR/8L-02/09 (Pt.) dated 27th July, 2012 had referred the dispute to the learned Fifth Industrial Tribunal, Kolkata, for adjudication, by framing the following issues:- (1) Whether the dismissal of Sri Balaga Ranga Rao from his service w.e.f. 01.11.2011 by the management of M/s. RDB Textiles Ltd. (Licensee of Victoria Jute Works) was justified? 725-LR/IR/8L-02/09 (Pt.) dated 27th July, 2012 had referred the dispute to the learned Fifth Industrial Tribunal, Kolkata, for adjudication, by framing the following issues:- (1) Whether the dismissal of Sri Balaga Ranga Rao from his service w.e.f. 01.11.2011 by the management of M/s. RDB Textiles Ltd. (Licensee of Victoria Jute Works) was justified? (2) What relief, if any, is the present workman entitled to? 7. The said proceeding was contested by the writ petitioner and ultimately by the award which is impugned in the present proceeding, the learned Tribunal was, inter alia, pleased to hold that the order of dismissal of the respondent no.3 from his service with effect from 1st November, 2011 by the management of RDB Textile Ltd. (Licensee of Victoria Jute Works) is absolutely illegal and invalid and not binding upon the workman Sri Balaga Ranga Rao and accordingly directed Sri Balaga Ranga Rao to be reinstated in service with full back wages and all other service benefits and facilities. 8. Challenging the aforesaid award, the present writ petition has been filed. It is in connection with the present writ petition, an application under Section 17B of the said Act has been filed. In the aforesaid application, the respondent no.3 has stated on oath in paragraph 17 thereof that the respondent no.3 is unemployed since the date of dismissal from service and is struggling for survival. It has also been submitted that during the pendency of the proceeding before the Tribunal he had filed an application under Section 15(2)(b) of the said Act, inter alia, praying for interim relief. Upon hearing the parties, the learned Tribunal by its order no. 52 dated 20th March, 2015 was, inter alia, pleased to direct the writ petitioner to pay of 50% of last wages drawn from the date of reference i.e., 27th July, 2012 and thereafter, at the rate of 75% of the last wages drawn till the disposal of the case as and by way of interim relief. It has been submitted that notwithstanding the aforesaid direction, the writ petitioner did not pay the respondent no.3 even a single paise. 9. In the affidavit-in-opposition filed on behalf of the writ petitioner, it has been stated that the writ petitioner has received information from reliable source that the applicant is in gainful employment and is receiving adequate remuneration for his sustenance. 9. In the affidavit-in-opposition filed on behalf of the writ petitioner, it has been stated that the writ petitioner has received information from reliable source that the applicant is in gainful employment and is receiving adequate remuneration for his sustenance. No document has, however, been disclosed in support of such contention. I may note that for an application under Section 17B of the said Act to succeed, the following three conditions as set forth in the said Act must be satisfied : 1. There must be an award passed by the Labour Court/Tribunal directing reinstatement of the workman; 2. There must be a challenge to such Award before the Hon’ble Supreme Court or the High Court; 3. There must be an affidavit by the workman, stating that he has not been employed in any establishment during such period. 10. In this case I find that the aforesaid three conditions stand satisfied. Before proceeding further, it is, however, necessary to consider the proviso to Section 17B of the said Act. Proviso to Section 17B of the said Act, however, makes it abundantly clear that if the High Court or the Supreme Court is satisfied that the workman had been employed and had received adequate remuneration during such period or part thereof, the Court shall order that no wages shall be payable to him under the aforesaid Section for such period or part, as the case may be. Admittedly, the writ petitioner, despite making an averment in paragraph 8 of the affidavit-in-opposition that it has received information from reliable source that the applicant/respondent no.3 is in gainful employment and is receiving adequate remuneration, has not disclosed any document in support thereof, nor any attempt has been made to disclose the basis of such information. In absence of such disclosure, I am afraid that the onus which is on the employer to prove to the satisfaction of the Court that the workman has been employed and is receiving adequate remuneration has not been discharged. 11. It is further noticed that in paragraph 22 of the said application, the respondent no.3 has claimed on oath that his last drawn average wages was Rs.8060/-per month. 11. It is further noticed that in paragraph 22 of the said application, the respondent no.3 has claimed on oath that his last drawn average wages was Rs.8060/-per month. Although, in paragraph 8 of the affidavit-in-opposition it has been claimed that the applicant, respondent no.3, prior to the date of termination from service was drawing wages at Rs.291.99/-per day, which works out to Rs.8760/-approximately per month, no document has been disclosed in support thereof. 12. Having regard to the aforesaid, I am of the view that the respondent no.3 is entitled to the relief as prayed for. Accordingly, there shall be an order directing the writ petitioner to make payment of the last drawn wages at Rs.8060/-per month from the date of passing of the award till disposal of the present writ petition or until further order or until the respondent no.3 reaches the age of superannuation whichever is earlier. 13. The writ petitioner is directed to make payment of the current dues on and from the 7th of each succeeding English calendar month only if the respondent no.3 has not reached the age of superannuation. Insofar as the arrear dues are concerned, the petitioner shall be at liberty to make payment of such arrear in four (4) equal monthly instalments commencing from January 2024, and the entire arrear dues must be cleared by 30th Aril 2024. 14. With the above observations/directions, the application being CAN 1 of 2019 stands disposed of. 15. Let the writ petition appear under the heading “Hearing” in the Combined Monthly List of March, 2024.