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Judgment
Jayanta Kumar Biswas, J.—The third Respondent in the pending Article 226 Petitioner has filed this application dated February 2, 2007 u/s 17-B of the Industrial Disputes Act, 1947.
Feeling aggrieved by the award of the Central Government Industrial Tribunal at Calcutta dated December 3, 1997 directing Food Corporation of India, the third Respondent''s former employer, to reinstate the third Respondent into service and pay him all back-wages and other consequential benefits, the corporation brought the Article 226 petition dated September 25, 1998.
By an order dated February 16, 1999 the petition was admitted. There is nothing to show that any prayer for interim relief was made or that any interim relief was granted.
The Section 17-B application was filed only on February 2, 2007. Paragraphs 11, 12, and 13 of the application are quoted below:
Your Petitioner-workman states that your Petitioner is not gainfully employed elsewhere.
Your Petitioner-workman states and submits that your-Petitioner-workman along with his family is almost under starvation.
Your Petitioner-workman states and submits that your Petitioner is entitled to get the interim relief u/s 17-B of industrial Disputes Act, 1947 since date of filing this writ petition by the Company (F.C.I.).
The corporation has filed an opposition dated May 17, 2007. Its case is this. The application has been filed around ten years after the award. Therefore, the case stated therein is an afterthought. In spite of best efforts the corporation could not ascertain the third Respondent''s whereabouts. Question of payment of wages to the third Respondent "does not arise" after extinguishment of the BG Point New Bongaigaon Railway Siding. The third Respondent has not produced any evidence to prove that he is not working elsewhere.
In para 4 of the affidavit-in-reply dated June 11, 2007 the third Respondent has stated as follows:
4... I further say that I am not gainfully employed elsewhere since my retrenchment, and 1 further state that there is no limitation for filing the application u/s 17-B of the Industrial Disputes Act.
In view of the provisions of Section 17-B of the Industrial Disputes Act, 1947 the (corporation is obliged to pay the third Respondent full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule, during pendency of the petition, if he had not been employed in any establishment during such period and files an affidavit to that effect.
Referring me to para 11 of the application, Mr. Gupta, counsel for the corporation, has argued as follows: The third Respondent''s own case proves that before February 2, 2007 he had been employed in some establishment or other. From the case stated in paras 11, 12 and 13 it cannot be concluded that before February 2, 2007 the third Respondent had not been employed in any establishment. The third Respondent''s own conduct proves that before February 2, 2007 he had been employed somewhere or other.
Mr. Pal, counsel-for the third Respondent, has submitted is follows. In the affidavit-in-reply the third Respondent has categorically stated that after retrenchment by the Corporation the third Respondent was not employed in any establishment. Case stated in paras 11, 12 and 13 of the application and para. 4 of the reply leads to the conclusion that the third Respondent has filed an affidavit to the effect that during pendency of the petition the third Respondent had not been employed in any establishment.
In my opinion/the third Respondent''s case stated in paras. 11, 12 and 13 of the application and para 4 of the reply, considered in the context of the case of the corporation stated in its opposition, leads to the conclusion that the third Respondent has filed an affidavit to the effect that during pendency of the Article 226 petition he had not been employed in any establishment.
The Corporation''s case is that the third Respondent has not given evidence in proof of his claim. The third Respondent is not required to give any evidence in proof of a case that during pendency of the petition he had not been employed in any establishment. In view of the provisions of Section 17-B he is required only to file an affidavit to that effect. It is for the corporation to give evidence in proof of a case, if asserted, that during pendency of the petition the third Respondent had been employed in any establishment.
It is to be noted that in its opposition the corporation has not stated any case that during pendency of the petition the third Respondent had been employed in any establishment. It is not the case of the corporation either that today the third Respondent is employed in any establishment. It is not necessary to speculate what will happen in future. The provisions of Section 17-B will take care of a future eventuality.
In view of the above-noted facts and circumstances and the provisions of Section 17-B of the Industrial Disputes Act, 1947, am unable to agree with Mr. Gupta that, if at all, the third Respondent is entitled to the Section 17-B benefit only from February 2, 2007 when the third Respondent filed the Section 17-B application and not from the date when the Article 226 was presented by the corporation.
The provisions of Section 17-B clearly provide that the workman seeking the benefit will be entitled to it during the period the petition of the employer remains pending before the Court. Here the Article 226 petition is pending before this Court from September 25, 1998. I am, therefore of the view that the third Respondent is entitled to the benefit of Section 17-B from September 25, 1998.
For these reasons, I allow the application and order as follows. The corporation shall pay the third Respondent benefits u/s 17-B of the Industrial Disputes Act, 1947 from September 25, 1998, adjusting payment, if any, already made for any period, within eight weeks from the date of communication of the order. No costs. Certified xerox.