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The Bishop Jerome Trust, Through its Administrator, Fr. George Rebero v/s Siji Varghese & Another

    WA. No. 2270 of 2018 in IA. No. 3835 of 2018 In WP(C). No. 38906 of 2017

    Decided On, 07 December 2018

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE P.R. RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE N. ANIL KUMAR

    For the Petitioner: Alex.M. Scaria, Saritha Thomas, Advocates. For the Respondents: T.K. Anandakrishnan, Sr.GP.



Judgment Text

P.R. Ramachandra Menon, J.

1. This appeal arises from the order dated 8.6.2018 passed by the learned single Judge in I.A. No.3835/2018 in W.P(C) No.38906/2017. The sum and substance of the case is that the service of the first respondent/workman was put to an end pursuant to the disciplinary proceedings taken against him. This was sought to be challenged in I.D.No.91/2013 before the Labour Court, Kollam. On conclusion of the trial, Ext.P10 Award was passed, whereby the first respondent/workman was ordered to be reinstated in service, with consequential direction to grant the attendant benefits and continuity of service, which was sought to be challenged by filing W.P.(C) No.38906/2017.

2. During the pendency of the above proceedings, the first respondent filed I.A. No.3835/2018 seeking for the benefits of Section 17B of the Industrial Disputes Act with a supporting affidavit to the effect that he was not employed in any e

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stablishment. The claim was sought to be resisted by the appellant/management stating that the petitioner was running a 'dance school' and hence the petitioner in the I.A. was not entitled to have any relief. The deposition given by the first respondent before the Labour Court was sought to be relied on, which, however, was sought be rebutted by the first respondent producing a 'legible copy' of the very same deposition, adding that he had never conceded before the Labour Court that he was running a 'dance school' and that his wife alone was taking the dance classes; more so since he admittedly was an 'electrician' under the management. After hearing both the sides, the learned single Judge passed an order on 8.6.2018 holding that the petitioner in the I.A. was entitled to get the benefit of Section 17B. It was also noted that there was no dispute with regard to the last drawn wages. ie. Rs.8,874/- per month. Direction was given to satisfy the benefit from the date of institution of the writ petition. This, in turn, is under challenge in this appeal, pointing out that the direction given by the learned single Judge is contrary to the mandate of Section 17B of the Industrial Disputes Act.

3. Heard both the sides.

4. The version of the appellant, that the benefit of Section 17B is not payable since the workman is running a 'dance school', is not liable to be accepted, both on question of law as well as on facts. The factual position as asserted by the 1st respondent/petitioner in the I.A., that there was no admission from his part that he was running a 'dance school'; whereas the dance classes were being taken by the wife, as taken note of by the learned single Judge in the order itself. However, according to the learned counsel for the appellant/writ petitioner/management, the entry in the 'legible copy' of the deposition produced by the petitioner in the I.A. is a 'typing mistake', which version cannot be accepted in view of the discussion made by the learned single Judge. That apart, the writ petitioner/management did not have a case that the petitioner was not an electrician or that he was running a dance school in any part of the pleadings, at any point of time. Section 17B of the Industrial Disputes Act is quite categoric to the effect that the exemption from discharging the liability under Section 17B will be attracted only in a situation carved out of the 'proviso', where the workman is employed in any establishment. The term “employment” in an establishment definitely visualises a situation where a 'master and servant relationship' is in existence. Even going by a version as now given by the appellant, there is no such 'master and servant relationship', in running a dance school, to eke out the living. This, however, cannot be the actual situation, in so far as he is admittedly an 'electrician' and the dance class is being taken by the 'wife', as deposed by him before the Labour Court.

5. So far as the first respondent is concerned, the essential requirements as envisaged under Section 17B of the Industrial Disputes Act stand satisfied. The scope of the provision stands declared by a Division Bench of this Court in the decision reported in Commandant, Defence Security v. Secretary, NCCGUE Assn. (2001 KHC 365). The conclusion has been stated in paragraph 12, which is reproduced below:

12. To sum up:

(i) When the conditions under S.17B of the Act are satisfied it is mandatory that the High Court or the Supreme Court directs payment of last drawn wages to the workman during the pendency of the proceedings challenging the award for reinstatement before the said courts.

(ii) The wages thus paid is in the nature of subsistence allowance and it is not refundable even if ultimately the award is set aside by the court.

(iii) But it is open to the High Court or the Supreme Court to order payment of a higher amount than the last drawn wages to the workman if such higher amount is considered necessary in the interests of justice; however in such circumstances appropriate directions should be issued regarding refund or recovery of the excess amount in the event of the award being set aside.

(iv) The workman is entitled to receive the last drawn wages during the pendency of the proceedings challenging the award in the High Court or the Supreme Court even if the establishment had been closed during the period of the pendency of the proceedings.

(v) Merely because a workman is engaged in some activity or in some avocation to eke out his livelihood the benefit under S.17B of the Act cannot be denied. Such denial is possible only if it is proved that the workman is gainfully employed in some establishment receiving adequate remuneration during the pendency of the proceedings before the High Court or the Supreme Court.

(vi) The direction for payment of last drawn wages has to be issued even if the employer has not prayed for staying the operation of the award; that is a condition precedent, once the other conditions are satisfied, for the pendency of the proceedings challenging the award before the High Court or the Supreme Court. Thus even if the award is not stayed but the Writ Petition challenging the award is admitted, during the pendency of the said proceedings the workman is entitled to receive the last drawn wages during the pendency of the proceedings.

(vii) The entitlement of the workman to receive last drawn wages is only during the pendency of the challenge of the award before the High Court or the Supreme Court and not from the date of the award.

(viii) The expression 'full wages last drawn' means the wages which were drawn by the workman at the time of termination of service and not the wages which would have been drawn by the workman if he had continued in service.

In view of the fact that the first respondent has satisfied the requirements under Section 17B, this Court is of the view that the appeal is devoid of any merit. It stands dismissed accordingly.

6. However, considering the submission made by the learned counsel appearing for the appellant, that breathing time might be given to satisfy the direction for effecting the payment due to the first respondent, we find it appropriate to grant one month's time to the appellant to effect the deposit and produce proof before the learned single Judge. Since this Court has declined interference in the appeal and the limited relief granted is only one month's time to effect the deposit, we do not find it necessary to hear the first respondent in the matter.

7. We make it clear that, while we follow the judgment rendered by the Division Bench in 2001 KHC 365, with regard to the scope of Section 17B and the essential requirements as mentioned therein, we do not express anything with regard to the conclusion stated at sub-paragraphs (iv) and (v) therein, which would be dealt with in detail at an appropriate stage, if and when the matter is caused to be considered by the Bench in the due course. We are saying so because, there is an observation with reference to the fact that even if the establishment is closed (which is presumably by satisfying the legal requirements under the Industrial Disputes Act) giving closure notice and paying compensation in terms of Section 25(FFF) Section 17B wages will have to be paid to the worker. Whether there could be a better placement/treatment for a workman who is proceeding with the industrial disputes, than the other workmen who had to leave the establishment pursuant to the closure, accepting the closure compensation, is a matter to be considered in detail. Similarly, there is also an observation to the effect that 'adequate compensation' will have to be ensured by the Court while ordering to comply with Section 17B of the Industrial Disputes Act. The said provision does not say anything other than the “last drawn salary” and this being the position, whether the legal provision could be rewritten by the Court, entering into the field of legislation, deciding the adequacy or inadequacy of the compensation is also a matter to be looked into and deliberated in detail. Since these aspects do not form the subject matter for consideration in the present appeal and since we have already declined interference in this case, the said questions can be considered only at the appropriate stage, if at all any occasion arises.
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