Binod Chandra Barman vs Agricultural and Processed Food Products Exports Development Authority

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Gau) 727

IN THE HIGH COURT OF GAUHATI
SANJAY KUMAR MEDHI, J.
Binod Chandra Barman - Appellant
Versus
Agricultural and Processed Food Products Exports Development Authority - Respondent
I.A. (Civil) No. 1544 of 2020 in WP(C) No. 2933 of 2020 and I.A. (Civil) No. 2029 of 2020 in WP(C) No. 2933 of 2020
Decided On : 14-12-2021

Advocates Appeared:
For the Appellant : L.C. Dey and K.N. Choudhury.
For the Respondents: K.N. Choudhury and H. Dey.

Headnote:
Constitution of India,1950 - Industrial Disputes Act, 1947 - Section 2(i) , 33-C(2) ,17B – Power of High Court to issue Certain Writs - Payment of full wages to workman pending proceedings in higher Courts - Whether provisions of Section 17B of Act which come into operation when there is an issue on the maintainability of the dispute itself - Whether such an act would amount to "be in employment" – Held, Since, direction to comply with the provision of Section 17B of Act was passed as a pre-condition for staying the award while admitting the writ petition, being WP(C) vide the order and the same is yet to be complied with and in the meantime, more than two years have passed from the date of 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 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 17B 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 17B of the Act along with the payment to Workman is directed to be made within a period of one month from today – Order accordingly.

JUDGMENT :

Sanjay Kumar Medhi, J.

1. 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 17B of the Act.

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 fulfillment of the condition under Section 17B of the Act.

5. It appears that in spite of the clear direction, there was no compliance of Section 17B of the Act. Consequently, the Workman has filed IA(C)/1544/2020 praying for compliance of the direction regarding Section 17B 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 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 17B of the Act.

7. Shri L.C. 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(i) 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