Binod Chandra Barman vs Agricultural And Processed Food ...
2021 Latest Caselaw 3456 Gua

                                                                        Page No.# 1/12

GAHC010127692020




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : I.A.(Civil)/1544/2020 In
                                    WP(C)/2933/2020

            BINOD CHANDRA BARMAN
            R/O. C/O. MR. D.R. NAG, SRINIKETAN, H/NO.99A, SREEPATH, DR. B.K.
            KAKATI ROAD, ULUBARI, GHY-7, ASSAM



            VERSUS

            AGRICULTURAL AND PROCESSED FOOD PRODUCTS EXPORTS
            DEVELOPMENT AUTHORITY (APEADA)
            MINISTRY OF COMMERCE AND INDUSTRY, GOVT. OF INDIA, 3RD FLOOR,
            NCUI BUILDING, 3, SIRI INDUSTRIAL AREA, AUGUST KRANTI MARG,
            NEW DELHI-110016, REP. BY ITS ASSISTANT GENERAL MANAGER,
            REGIONAL OFFICE, GUWAHATI



Advocate for the Petitioner   : MR. L C DEY

Advocate for the Respondent : MR. K N CHOUDHURY



            I.A.(Civil)/2029/2020 In
            WP(C)/2933/2020

            AGRICULTURAL AND PROCESSED FOOD PRODUCTS EXPORTS
            DEVELOPMENT AUTHORITY (APEADA)
            MINISTRY OF COMMERCE AND INDUSTRY GOVT. OF INDIA
            3RD FLOOR
            NCUI BUILDING
            3
            SIRI INDUSTRIAL AREA
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             AUGUST KRANTI MARG
             NEW DELHI-110016
             REP. BY ITS ASSISTANT GENERAL MANAGER
             REGIONAL OFFICE GUWAHATI


             VERSUS

            BINOD BARMAN
            C/O. MR. D.R. NAG
            SRINIKETAN
            H/NO.99A
            SREEPATH
            DR. B.K. KAKATI ROAD
            ULUBARI
            GHY-7
            ASSAM


            ------------
            Advocate for : MR. K N CHOUDHURY
            Advocate for : MR H Dey appearing for BINOD BARMAN



                                     BEFORE
                    HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

                                       JUDGMENT

Date : 14-12-2021

A short question arises for determination of the lis which involves Section 17B of the Industrial Disputes Act, 1947 (herein after referred to as the Act). Both the Interlocutory Applications (IA), which have come up for consideration, are based on an interim order dated 03.08.2020 passed in the connected WP(C)/2933/2020. While IA(C)/1544/2020 has been filed by the applicant, who is the Workman, for granting of the relief under the aforesaid Section by categorically stating that he is not gainfully employed, the second application, being IA(C)/2293/2020 has been filed by the petitioner as Management for modification of the order dated 03.08.2020 by deleting the direction for compliance of the provisions of Section 17 B of the Act.

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2. To appreciate the issue raised, it would be convenient if the basic facts are put on record.

3. The connected writ petition has been filed by the Management challenging, inter alia, an Award dated 01.10.2019 passed by the learned Central Government Industrial Tribunal, Guwahati (herein after CGIT) whereby the Management of the Agricultural and Processed Food Products Exports Development Authority (APEDA) has been directed to reinstate the Workman in the same category with effect from the date of his actual reinstatement and also to pay him a lump sum amount of Rs. 1,00,000/- in lieu of the back wages. The Award was directed to be complied with within a period of 90 days.

4. Being aggrieved by the said Award, the Management-APEDA has filed the connected writ petition where the Workman was represented on the basis of a caveat. This Court, after hearing the parties, had passed an order dated 03.08.2020 whereby Rule was issued and, in the interim, had directed that the Award dated 01.10.2019 passed by the learned CGIT in Reference Case No.2/2013 shall remain stayed subject to fulfilment of the condition under Section 17 B of the Act.

5. It appears that in spite of the clear direction, there was no compliance of Section 17 B of the Act. Consequently, the Workman has filed IA(C)/1544/2020 praying for compliance of the direction regarding Section 17 B as per the order dated 03.08.2020. In the said Interlocutory Application, the Workman has categorically stated that he has neither any alternative source of earnings nor any regular gainful activity till date. As the said averment is of crucial importance, the same is extracted herein below:-

3. That, the Deponent / Respondent No. 3 being very poor, passing his days in great economic hardships alongwith his family, since he was terminated from service from the Writ Petitioner's establishment, after rendering his continuous service under the said organization namely, Agriculture and Processed Food Products Exports Development Authority (hereinafter called as APEDA) for a long period of 13 (Thirteen) years 3 (Three) months, and that the Page No.# 4/12

Applicant / Respondent No.3 became jobless since then, and has no other alternative source of earnings anywhere nor any regular gainful activity in any field till date.

6. On the other hand, the Management has filed IA(C)/2029/2020 for vacation of the interim order dated 03.08.2020 passed in the WP(C)/2933/2020 so far it relates to compliance with the provisions of Section 17 B of the Act.

7. Shri LC Dey, learned counsel for the Workman / applicant in IA(C)/1544/2020 by referring to the impugned Award dated 01.10.2019 passed by the learned CGIT has submitted that a preliminary issue on the maintainability of the reference which was raised by the Management has been answered holding that the reference was maintainable. It was the case of the Management that APEDA is not an Industry within the meaning of Section 2(j) and therefore the Act would not come into operation. However, the said contention has been negated by the learned Tribunal.

8. As regards the entitlement to full wages last drawn, the learned counsel for the Workman has submitted that it is the mandate of the Act that such wages have to be given to the Workman during the pendency of the proceeding in the High Court or in any other Appeal. In this regard, the learned counsel for the Workman has placed reliance upon the following case laws:

i) Dena Bank Vs. Ghanshyam, (2001) 5 SCC 169;

ii) National Institute of Public Vs. Union of India, decided on 22.04.2008 [Delhi High Court]; and

iii) The State of Rajasthan & Ors. Vs. Shri Lala Ram Nama, 2020 LLR 535.

9. In the case of Dena Bank (supra), the Hon'ble Supreme Court has observed that the purpose of Section 17 B of the Act was to ensure that the Workman should get the last drawn wages from the date of the Award till the challenge to the Award is finally decided. It has further been held that the aforesaid Section will not preclude the Superior Court for granting Page No.# 5/12

better benefits.

10. In the case of National Institute of Public (supra), the Hon'ble Delhi High Court has held that the Superior Court is not precluded by Section 17 B of the Act to order payment of a higher amount which may be necessary in the interest of justice. As regards gainful employment, the Court had reiterated the observation of the Hon'ble Supreme Court in various cases that the same cannot be extended to begging and similar activities carried out by a dismissed employee for his survival. It has further been held that being an employee for remuneration in an establishment means employment under another employer and it is different from running one's own business or trade in order to survive and see the end of the litigation.

11. The Rajasthan High Court in the case of Shri Lala Ram Nama (supra) has held that Section 17 B of the Act is a mandatory provision and since the same was not complied with, the writ petition was dismissed.

12. Per Contra, Shri D. Saikia, learned Senior Counsel for the Management which has filed IA(C)/2029/2020 for modification of the interim order has contended that the APEDA is not an Industry within the meaning of Section 2(j) of the Act and therefore, a question of jurisdiction would arise which is required to be decided first by contending that the Industrial Tribunal did not have the jurisdiction to adjudicate the dispute on the aforesaid ground. The learned Senior Counsel submits that before deciding the preliminary issue, the issue concerning compliance of Section 17 B of the Act should be decided subsequently.

13. As regards the gainful employment, the learned Senior Counsel has drawn the attention of this Court to the statement of the Workman made in cross-examination that he was running of Pan Shop inside the premises of the APEDA and therefore, he is not entitled to the benefit of Section 17 B of the Act. Shri Saikia submits that the present is not a case regarding the quantum but is with regard to the propriety in making any payment under the said provision.

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14. In support of his submissions, the learned Senior Counsel for the Management has placed reliance upon the following case laws:

i) The State of MP Vs. Sardar DK Jadav, AIR 1968 SC 168;

ii) Elpro International Limited Vs. KB Joshi & Ors., (1987) II LLJ 210 Bom;

iii) Tara & Ors. Vs. Director, Social Welfare & Ors., (1998) 8 SCC 671; and

iv) North-East Karnataka Road Transport Corporation Vs. M Nagangauda, (2007) 10 SCC 765.

15. The case of Sardar DK Jadav (supra) has been cited to gain support to the plea that the preliminary issue has to be decided first by the High Court by its own independent judgment.

16. The case of Elpro International Limited (supra) has been cited to bring home the contention that it was incumbent upon the Workman to file an affidavit regarding his non- employment and if the employer is able to prove to the satisfaction of the Court that the Workman has been otherwise employed and is receiving adequate remuneration, the same absolves the employer from his obligation to pay such wages.

17. In the case of Tara (supra), the Hon'ble Supreme Court was dealing with a matter of maintainability of an application under Section 33-C (2) of the Act wherein it has been held that the status and nature of employment of the Workman are relevant.

18. In the case of M Nagangauda (supra), the Hon'ble Supreme Court has dealt with the aspect of gainful employment.

19. The rival submissions of the learned counsel for the parties have been duly considered and the materials placed before this Court have been carefully examined.

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20. The issue which arises for determination is whether the provisions of Section 17 B of the Act which come into operation when there is an issue on the maintainability of the dispute itself. A further issue would also arise regarding the conditions which are required to be fulfilled for application of the provision of the aforesaid Section.

21. Before dealing with the respective submissions, this Court is of the view that it would be convenient to refer to the relevant Section of the Act involved namely, Section 17 B which is extracted hereinbelow:

"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."

22. It is no longer res integra that the aforesaid provision of 17 B of the Act is mandatory in nature and as held by the Hon'ble Supreme Court, the purpose of the said enactment is to give relief to a Workman who has been ordered to be reinstated by an Award passed by a labour Court or an Industrial Tribunal during the pendency of the proceedings wherein the said Award is the subject matter of challenge in the High Court or the Hon'ble Supreme Court. The objective is to ensure that a minimum hardship is caused to the Workman due to Page No.# 8/12

the delay in implementation of the Award because of the pendency of the litigation. It has further been held that the said payment is in the nature of subsistence allowance which is not refundable or recoverable from the Workman even if the challenge to the Award is upheld. The Hon'ble Supreme Court in the case of Dena Bank (supra) in no uncertain terms has held that the payment has to be the full wages last drawn has to mean the remuneration which the Workman was getting at the time of removal and may not be restricted to that as the aforesaid Section does not preclude the High Court or the Hon'ble Supreme Court to pass appropriate order giving better benefit to the Workman.

23. Dealing with the first submission regarding the preliminary ground of maintainability, this Court has noticed that the same ground was raised before the learned Tribunal separately which was heard and decided vide order dated 03.11.2017 for ready reference, the preliminary issue raised is extracted hereinbelow:

"Whether the reference itself is maintainable under Industrial Disputes Act, 1947 in view of the claim of the OP/Management that the OP/Management is not an "Industry" within the meaning of "Industry" as defined in Industrial DisputeS Act, 1947."

24. The learned Tribunal, after elaborate discussions and after taking into consideration the law laid down by the Hon'ble Supreme Court, amongst others in the case of Banglore Water Supply and Sewerage Board vs. a. Rajappa, reported in (1978) 2 SCC 213, vide order dated 03.11.2017 decided the preliminary issue against the Management by holding that APEDA is an Industry within the meaning of Section 2(j) of the Act and accordingly, the Reference was held to be maintainable. It may further be noted that the aforesaid order dated 03.11.2017 was not put to immediate challenge and the Management allowed the proceedings to continue till the Award was delivered on 01.10.2019 thereby directing reinstatement of the Workman and it is only while filing of the present petition challenging the award, the earlier order dated 03.11.2017 has been collaterally challenged.

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25. This Court is of the view that notwithstanding the fact that the issue of maintainability has already been answered by the learned Tribunal in favour of the Workman, the said question of maintainability of the Reference is a question on the merits and will not have any bearing with the applicability of Section 17 B of the Act. This Court is unable to accept the submission of the learned Shri Saikia, learned Senior Counsel for the Management that without deciding the question of maintainability of the Reference, Section 17 B of the Act shall not be applicable. This Court is of the opinion that the aforesaid provision of law was incorporated with a view to provide the means of subsistence to the Workman during the period of pendency of the proceeding before the High Court or the Hon'ble Supreme Court and if the argument advanced by the Management is accepted, the same will defeat the very objective of the provision of law.

26. The second question which would arise for determination is the question of gainful employment. It is argued on behalf of the Management that in the cross-examination of the Workman, he had admitted that after his termination, he had opened a Pan Shop in the premises of the APEDA. The requirement of the statute is that an affidavit is required to be submitted by the Workman that he has not been employed in any establishment during the pendency of the proceedings. The onus however, shifts upon the Management to prove to the satisfaction of the Court that such Workman had been employed and had been receiving adequate remuneration. In the instant case, the Workman discharged his burden by filing the affidavit regarding his non-employment whereas the only material placed before the Court by the Management regarding gainful employment is the statement of the Workman that he was running Pan Shop.

27. Apart from the fact that the Workman has refuted the aforesaid allegation of running a Pan Shop terming the said to be for a very few days, what is required to be seen is as to whether such an act would amount to "be in employment". The language of the statute is "such workman had been employed and had been receiving adequate remuneration". The plain and literal meaning of the statute cannot be stretched to mean that running of a Pan Shop for a temporary period would preclude the Workman from receiving the benefit of Page No.# 10/12

Section 17 B of the Act.

28. This Court is of the view that the expression employed for remuneration in an establishment would mean employment under an employer and cannot include one's own business or trade in order to survive. In the instant case, there is nothing in record to show that the Workman in question was employed in any establishment from where he was getting adequate remuneration.

29. On the other hand, the case laws cited by Shri Saikia, the learned Senior Counsel will not come to his aid. So far as the case of Sardar DK Jadav (supra) is concerned, it has been laid down that the High Court is vested with the jurisdiction of deciding the correctness of a preliminary finding of fact. There is absolutely no dispute to the aforesaid proposition of law. At this stage, it is necessary to deal with the submission made on behalf of the Management that the present issue should be decided along with the main writ petition. Such submission cannot be countenanced due to the authoritative pronouncement by the Hon'ble Supreme Court in the case of Workman, Hindustan Vegetable Oil Corporation Ltd. Vs. Hindustan Vegetable Oil Corporation Ltd., reported in (2000) 9 SCC 534 wherein, while deprecating the practice of disposal of the petition as well as the application under Section 17 B of the Act contemporaneously, it has been held that while considering the application under Section 17 B of the Act, the Court cannot go into the merits of the case in the writ petition.

30. The case of the Bombay High Court (Elpro International Limited) does not also come to the aid of the Management. In the paragraph 8 of the said Judgment, it has been laid down that there is an obligation of the Workman concerned to file an affidavit before the Court stating that he has not been employed in any establishment and in the instant case that obligation has been duly discharged by the Workman. The Hon'ble Court has rather held that Section 17 B of the Act does not restrict the powers of the Superior Court under Articles 136 or 226 for granting better benefit during the pendency of the proceedings. The same view is reiterated by the Hon'ble Supreme Court in the case of Dena Bank (supra).

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31. The case of Tara (supra) deals with the subject regarding the procedure involved in adjudication of an application under Section 33-C (2) of the Act and is not connected to the present issue. Further, in the case of M Nagangauda (supra) though the expression "gainful employment" had come up for interpretation, such interpretation was with regard to determination of grant of full back wages and not connected with Section 17 B of the Act.

32. Upon consideration of the law holding the field and its interpretation given by the Hon'ble Supreme Court, this Court is of the view that the pre-conditions of Section 17 B of the Act are fulfilled and the Workman had also discharged his obligation of filing an affidavit regarding his non-employment. Under the aforesaid facts and circumstances and taking into consideration the caveat given by the Hon'ble Supreme Court not to simultaneously take up the writ petition and the application involving implementation of Section 17 B of the Act, this Court is of the opinion that the Management has failed to make out any case for modification of the interim order dated 03.08.2020. On the other hand, the prayer of the Workman for compliance of the provision of Section 17 B of the Act as per the said order dated 03.08.2020 is held to be justified and accordingly, granted. Accordingly, IA(C)/1544/2020 filed by the Workman, respondent no. 3, is allowed whereas IA(C)/2029/2020 filed by the Management (petitioner) is dismissed.

33. Since, the direction to comply with the provision of Section 17 B of the Act was passed as a pre-condition for staying the award dated 01.10.2019 while admitting the writ petition, being WP(C)/2933/2020 vide the order dated 03.08.2020 and the same is yet to be complied with and in the meantime, more than two years have passed from the date of the Award and more than a year has passed from the date of the interim order, this Court, in exercise of powers under Article 226 of the Constitution of India, directs the Management (writ petitioner) to additionally pay an amount of Rs.50,000/- (Rupees Fifty Thousand) to the Workman, respondent no. 3. The aforesaid direction is given by following the law laid down by the Hon'ble Supreme Court that the jurisdiction to grant relief under Section 17 B of the Act will not preclude a Superior Court to grant better relief to the Workman during the pendency of the proceedings. The compliance of the Section 17 B of the Act along with the payment of Rs.50,000/- (Rupees Fifty Thousand) to the Workman is directed to be made Page No.# 12/12

within a period of one month from today.

34. Both the IA(C)/1544/2020 and IA(C)/2029/2020 are accordingly disposed of.

JUDGE

Comparing Assistant