M/S. Hooghly Infrastructure Pvt. ... vs Surendra Prasad & Anr
2023 Latest Caselaw 4222 Cal

                  IN THE HIGH COURT AT CALCUTTA
                CONSTITUTIONAL WRIT JURISDICTION
                        APPELLATE SIDE


Present :
The Hon'ble Justice Raja Basu Chowdhury

                         WPA 6567 of 2023
                              With
                          CAN 1 of 2023

               M/s. Hooghly Infrastructure Pvt. Ltd.
                               Vs.
                     Surendra Prasad & Anr.


For the petitioner             :    Mr. Soumya Majumder, Adv.
                                    Mr. S. K. Singh, Adv.
                                    Mr. R. K. Dubey, Adv.

  For the respondent no.1      :    Mr. Rananeesh Guha Thakurta

Ms. Senjuti Sengupta Ms. Dona Ghosh Ms. Dipa Roy

Heard on : 24.04.2023

Judgment on : 14.07.2023

Raja Basu Chowdhury, J.:-

CAN 1 of 2023

1. The writ application has been filed, inter alia, challenging the

award dated 29th November, 2022, passed by the learned First

Industrial Tribunal, Kolkata, West Bengal, in Case No.VIII-20 of

2017, whereby the learned Tribunal was pleased to direct

reinstatement of the respondent no.1, along with full back wages

and other consequential reliefs including the compensation to

the tune of Rs.2,00,000/-.

2. In connection with the aforesaid writ petition, the present

application under Section 17B of the Industrial Disputes Act,

1947 (hereinafter referred to as the "said Act") has been filed,

which has been registered as CAN 1 of 2023.

3. Mr. Guha Thakurta, learned advocate representing the

respondent no.1/applicant submits that the respondent no.1

was appointed in the services of the writ petitioner with effect

from 9th April, 1995 and had discharged his duties to the utmost

satisfaction of the management. Unfortunately, the management

illegally terminated the respondent no.1 from services by not

allowing him to join his duties with effect from 10 th April, 2016.

4. An industrial dispute was raised and the same was referred by

the appropriate Government to the First Industrial Tribunal,

Kolkata, West Bengal. On contest, by an award dated 29th

November, 2022, the learned Tribunal was, inter alia, pleased to

direct the respondent no.1, the applicant herein to be reinstated

in service with full back wages and other consequential reliefs.

The aforesaid award has been impugned by the petitioner in the

present writ petition. He says that the applicant has a right to be

entitled to the minimum maintenance as is statutorily provided

under the provisions of Section 17B of the said Act.

5. By referring to page 133 of the writ petition, it is submitted that

the Tribunal had by its award determined that the applicant's

last drawn wages was Rs.12,000/- per month at the time of

termination, and as such, the writ petitioner should be directed

to make payment of Rs.12,000/- per month to the applicant, as

last drawn wages. He still further submits that the applicant is

unemployed from the date of termination and is not receiving

adequate remuneration. That the applicant since, the date of his

termination i.e., from 10th April, 2016 has not been able to

secure any other employment. He prays for disbursal of wages

last drawn from the date of passing of the award inasmuch as

despite the award directing reinstatement, the applicant has

been denied such a relief.

6. Per contra, Mr. Majumder, learned advocate representing the writ

petitioner submits that the applicant/respondent no.1 was a

badli worker and there was no justification on the part of the

Tribunal in directing his reinstatement. It is still further

submitted that the last drawn wages as determined by the

Tribunal is incorrect. The same is also impugned in the present

proceedings. By drawing attention of this Court at page 61 of the

writ petition he says that the wage slip of the concerned

employee would demonstrate that the applicant was drawing a

gross wages of Rs.11685/-. According to Mr. Majumder,

Rs.1300/- is deductible from the gross salary and as such the

applicant's last drawn wages comes out to Rs.10,385/-. He says

in the facts and circumstances, the writ petitioner should be

entitled to the last drawn net salary and the writ petition should

be heard.

7. Heard the learned advocates appearing for the respective parties

and considered the materials on record. I find that by the award,

which is impugned in the present writ petition, the Tribunal has,

inter alia, directed reinstatement of the applicant/respondent

no.1 along with full back wages. I find that in order to succeed in

an application filed under Section 17B of the said Act, three

conditions of the said Section must be satisfied.

i) There must be an award for reinstatement passed by

the learned Labour Court or Tribunal or National

Tribunal;

ii) There must be a challenge to such award pending

before either the High Court or the Supreme Court;

iii) An affidavit must be filed by the concerned workman,

so as to demonstrate that he is out of employment and

is not gainfully employed, subsequent to the order of

termination.

8. In this case, I find that there is an award directing

reinstatement, passed by the learned Labour Court. There is also

a challenge to such award before this Court and an affidavit has

been filed by the concerned workman so as to demonstrate that

he is out of employment and is not gainfully employed

subsequent to the order of termination. As such, I find that all

the aforesaid three conditions are fulfilled.

9. The proviso to Section 17B of the said Act, however, inter alia,

also provides that if 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

such period or part thereof, the Court shall order that no wages

shall be payable under this Section for such period or part

thereof, as the case may be. In the present case the writ

petitioner has not been able to demonstrate that the applicant is

gainfully employed or is receiving adequate remuneration. On the

contrary, the applicant in paragraph 5 of the application has

stated on oath that since the date of his termination i.e. on 10 th

April, 2016, he has not been able to secure any other

employment due to the stigma attached to the said illegal

termination. Since the writ petitioner has failed to prove to the

satisfaction of this Court that the applicant workman is

employed and has been receiving adequate remuneration, I am of

the view that the objection as regard payment of minimum

maintenance to the applicant cannot be sustained.

10. I, however, find that it has been claimed by the applicant in

paragraph 6 of the application that the applicant's last drawn

wages was Rs.12,000/- per month at the time of termination. In

support of the aforesaid, the applicant relies on the

determination made by the learned Tribunal. On the contrary, I

find that the writ petitioner has disclosed a wage slip of the

applicant wherefrom it would appear that the gross wages of the

applicant/respondent no.1 prior to his termination from service

was Rs.11,685/-. Mr. Majumder, by referring to the aforesaid

wage slip submits that on account of ESI and Provident Fund, a

sum of Rs.1300/- is deductible. After the deductions, the last

drawn net wages payable to the respondent no.1 was

Rs.10,385/-. Although Mr. Guha Thakurta, learned advocate

representing the respondent no.1/applicant, has strenuously

argued that the last drawn wages of the respondent

no.1/applicant should be the gross wages, I, however, find from

the judgment delivered by this Hon'ble Court in the case of M/s

Plasto-Sen Ltd. & Anr. v. Second Industrial Tribunal & Ors.,

reported in 2011 SCC OnLine Cal 5084, relied on by Mr.

Majumder, it would appear that this Hon'ble Court while

considering an identical issue was pleased to observe as follows:-

"The question which requires to be answered thus is as to whether the expression 'full wages last drawn' would imply what was going out of the company's coffers in respect of a workman at the relevant point of time or what was coming in the hands of the workman concerned at that point of time. In the case of Ranbaxy Laboratories Ltd. and Hooghly Printing Co. Ltd. [supra], Their Lordships have taken the view that what was reaching the concerned workman at the relevant point of time

would be 'full wages last drawn' and not what was leaving the company's coffers on account of the workman, where portion of it was intercepted midway mostly in terms of certain beneficial legislative provisions like Provident Fund or Employees State Insurance contribution and other statutory dues like professional tax. In the event the two decisions of this Court held in the cases of Ranbaxy Laboratories Ltd. and Hooghly Printing Co. Ltd. were not there, I might have had considered holding that full wages last drawn would imply what was leaving the company's coffers on account of the concerned workman and not what was directly reaching the workman because whatever was being remitted to the E.S.I. authorities or the Provident Fund authorities would have constituted sums drawn by the workman but remitted for his own benefit to certain statutory authorities.

But there being two judgements of this Court in which a contrary view is taken, judicial propriety demands that I follow the ratio of the said decisions, which I do in this case."

11. Having regard to the aforesaid judgment I hold that the

applicant workman would be entitled to his net last drawn wages

of Rs.10,385/-.

12. The only other issue which falls for consideration in the

present application is the date from which the applicant would

be entitled to the last drawn wages, I find that the present writ

petition was filed on 17th March, 2023 although the award has

been passed on 29th November, 2022.

13. To decide the aforesaid question, the object of enactment of

Section 17B of the said Act is required to be borne in mind. In

this case, it appears that the management had terminated the

respondent no.1 by not allowing him to join duties with effect

from 10th April, 2016. The Tribunal by an award, which is

impugned in the writ application, had come to a categorical

finding on merits that the petitioner had an unblemished

character and had worked from 1995 to 2016. The respondent

no.1 was on statutory leave from 2nd March, 2016 to 26th March,

2016, which was later extended upto 31st March, 2016. Due to

the medical emergency he could not join duty on 1st April, 2016,

and was not allowed to join duty on 5th April, 2016. He was

debarred by all means to join his regular duty without assigning

any reasonable ground. It is based on this finding that the

Tribunal also came to a specific finding that the respondent no.1

was in regular employment of the writ petitioner and as such his

tenure in the company was not that of a casual Badli worker. It

is in the factual backdrop as aforesaid, the termination by way of

refusal of employment was held to be illegal and unjustified and

a direction was issued to reinstate the workman with full back

wages and other consequential benefits, with a further direction

to make payment of Rs. 2,00,000/- (Two Lakhs) towards

compensation, on account of harassment and mental agony.

14. A perusal of the statement of objects and reasons for

inserting Section 17B in the said Act would indicate that when

Labour Courts pass award of reinstatement, they are often

contested by employers in the Supreme Court and High Courts.

To mitigate the hardship that would be caused due to delay in

implementation of the award, it was proposed to provide for

payment of wages last drawn by the workman concerned from

the date of the award till the dispute between the parties is

finally decided in the High Courts or the Supreme Court. It

follows that in the event of an employer not reinstating the

workman and seeking any interim relief in respect of the award

directing reinstatement of the workman or in a case where the

Court is not inclined to stay such award in toto, the workman

has two options either to initiate proceeding to enforce the award

or be content with receiving the full wages last drawn by him

without prejudice to the result of the proceedings preferred by

the employer against the award, till he is reinstated or

proceedings are terminated in his favour, whichever is earlier.

Ordinarily, therefore, if there is no challenge to the award, the

workman has the right to enforce the same. Such right, however,

takes a back seat when the same is challenged in a Superior

Court being the High Courts or the Supreme Court where

balance of inconvenience ordinarily requires stay of

implementation of the award. The right to enforce the award, on

the filing of the application, takes a back stage and it is for such

purpose, with the object of providing minimum compensatory

benefits to the workman, a right has been given to the workman

to claim wages last drawn. The trigger for invoking such right

being the filing of a proceeding, challenging the award either

before the Supreme Court or before the High Court, so long such

challenge is not initiated, the right to seek such compensation

does not surface, as the workman has the right to independently

enforce the award.

15. In such view of the matter, the respondent no.1/applicant

shall be entitled to his last drawn wages from the date of

enforcement of the award for reinstatement by the learned

Tribunal, inasmuch as the right to enforce the claim for

reinstatement emanates from the Award itself.

16. The writ petitioner is, thus, directed to make payment of the

last drawn wages of the respondent no.1/applicant determined

as aforesaid, from 3rd January, 2023 till the disposal of the writ

application or until further order, whichever is earlier.

17. It is further directed that the current wages for the month of

July, 2023 shall be paid on or before 30th July, 2023 and for the

succeeding months be paid on/or before 7th of each succeeding

month. The arrears should be paid within four weeks from the

date of communication of this order.

18. With the aforesaid directions, the application, being CAN 1 of

2023 stands disposed of.

WPA 6567 of 2023

19. Heard the learned advocates appearing for the respective

parties and having regard to the nature of challenge, I am of the

view that the writ petition has to be heard.

20. Accordingly, let affidavit-in-opposition to the present writ

petition be filed within a period of six weeks from date. Reply, if

any, thereto, shall be filed within two weeks thereafter.

21. Liberty to mention for inclusion in the list after expiry of the

period for exchange of affidavits.

22. Since the writ petition will be heard, the impugned award

shall remain stayed.

(Raja Basu Chowdhury, J.)