The employer must prove that the employee is employed and receiving adequate remuneration to avoid payment under Section 17B of the Industrial Disputes Act, 1947.

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?

(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 cas