Karnataka High Court
Mr Kamaraju P vs M/S Hinduja Global Solutions Ltd on 3 June, 2022
Bench: Alok Aradhe, J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JUNE 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MS.JUSTICE J.M. KHAZI
W.A. NO.1092 OF 2021 (L-RES)
IN
W.P.No.43060 OF 2019 (L-RES)
BETWEEN:
MR. KAMARAJU .P
AGED ABOUT 46 YEARS
S/O PONNEGOWDA
R/AT NO.13 4TH C MAIN
MUNESHWARA BLOCK
LAGGERE, BENGALURU 560 058.
... APPELLANT
(BY MR. S.P. RAMESHA, ADV.,)
AND:
M/S. HINDUJA GLOBAL SOLUTIONS LTD.,
CORPORATE OFFICE SITUATED AT NO.690
GOLD HILL SQUARE PARK
FIRST FLOOR, BOMMANAHALLI
HOSUR ROAD, BENGALURU 560 068.
... RESPONDENT
(BY MR. GANAPATHY HEGDE, SR. COUNSEL FOR
MRS. PRIYA KALE, ADV.,)
---
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED
26.07.2021 PASSED BY THE LEARNED SINGLE JUDGE ON
I.A.1/2020 IN WP NO. 43060/2019 (L-RES) AND CONSEQUENTLY
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ALLOW THE I.A.NO.1/2020 IN WRIT PETITION NO.43060/2019
(L-RES) IN THE INTEREST OF JUSTICE AND EQUITY.
THIS W.A. COMING ON FOR PRELIMINARY HEARING, THIS
DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:
JUDGMENT
Mr.S.P.Ramesha, learned counsel for the petitioner.
Mr.Ganapathy Hegde, learned Senior counsel along
with Miss Priya Kale, learned counsel for the respondent.
This intra Court appeal has been filed against the order
dated 26.07.2021 passed by the learned Single Judge by
which the application preferred by the appellant under
Section 17-B of the Industrial Disputes Act, 1947 (hereinafter
referred to as 'the Act' for short) was dismissed.
2. Facts leading to filing of this appeal briefly stated are
that the appellant joined employment of the respondent -
Company on 04.01.2001 as a Claim Processor. Thereafter,
he was elevated to the position of Group Leader w.e.f.
01.04.2004. The appellant's services were terminated by the
respondent - Company. Being aggrieved, the respondent
initiated the proceedings under the Act. The Labour Court,
by an award dated 25.07.2019, directed reinstatement of the
services of the appellant and further directed the respondent
to pay 35% of the backwages to the appellant.
3. The respondent challenged the award passed by the
Labour Court in a writ petition. In the said writ petition, the
appellant filed an application under Section 17-B of the Act
seeking payment of wages during the pendency of the writ
petition. The respondent filed objections in which inter alia it
was pointed out that the appellant is gainfully employed. In
support of aforesaid submissions, whatsapp chat of the
appellant was annexed.
4. The learned Single Judge, however, by an order
dated 26.07.2021, dismissed the application under Section
17-B of the Act inter alia on the ground that the appellant,
without any protest, accepted the settlement of
Rs.2,41,697/- and had voluntarily resigned from the
employment. In the aforesaid factual background, this
appeal has been filed.
5. Learned counsel for the appellant submitted that the
learned Single Judge grossly erred in rejecting the application
under Section 17-B of the Act. It is further submitted that
the respondent had merely produced the screenshots of
whatsapp chat of the appellant and the same does not
constitute proof of gainful employment and therefore, the
appellant is entitled to backwages. In support of aforesaid
submissions, reliance has been placed on the decisions of the
Supreme Court in 'TODI INDUSTRIES LTD. Vs. UNION OF
INDIA AND OTHERS' (1999) 9 SCC 230 as well as
Division Bench decision of this Court in W.A.No.3123/2014
dated 15.04.2015.
6. On the other hand, learned counsel for the
respondent has pointed out that the appellant even in his
cross-examination before the Labour Court, did not deny the
whatsapp chat and screenshot of whatsapp chat of the
appellant with one of the employees of the respondent which
clearly demonstrated that the appellant is gainfully
employed. Therefore, the appellant is not entitled to
backwages under Section 17-B of the Act.
7. We have considered the submissions made on both
sides and have perused the record. Section 17-B of the Act
reads as under:
"17B. 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."
Thus, from perusal of the aforesaid provision that an
employee is entitled to backwages if the award terminating
reinstatement of his services is challenged by an employer in
the High Court or Supreme Court. However, the aforesaid
provision further mandates that the workman could not be
employed in any establishment during the period and an
affidavit to such effect should be filed.
8. Though in the affidavit the appellant had asserted
that he is not gainfully employed, yet the respondent in the
objection in paragraph 10, had stated that the appellant had
started his own enterprise and is gainfully employed. In
support of aforesaid averment, whatsapp chat of the
appellant with one of employees of the respondent -
Company was annexed. The appellant has not denied the
whatsapp chat between him and the employee of the
Company. Thus, it is evident that at the relevant time, the
appellant was gainfully employed. Therefore, he is not
entitled to backwages under Section 17-B of the Act.
9. Sofar as reliance placed by the appellant on the
decision of the Supreme Court in TODI INDUSTRIES LTD.
supra is concerned, suffice it to say that the aforesaid case is
an authority for the proposition that the Court has no
jurisdiction to direct non-compliance of Section 17-B of the
Act. However, the condition precedent for passing an order
under the provision is fulfilled. Similarly, in the Division
Bench judgment of this Court dated 15.04.2015, the
application under Section 17-B of the Act was rejected on the
ground that the matter can be heard out of turn. Therefore,
the aforesaid decisions have no application to the obtaining
factual matrix of the case.
For the aforementioned reasons, though we do not
agree with the reasoning given by the learned Single Judge,
yet the conclusion arrived at, is affirmed.
In the result, the appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
RV
