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Judgment
Devan Ramachandran, J.
The appellant, who is stated to be the Director of a private limited company, asserts that the impugned order of the learned Single Judge is illegal and unlawful because, through it, the first respondent has been directed to be paid wages under Section 17B of the Industrial Disputes Act (‘I.D.Act’ for short).
It is on record that the second respondent - Labour Court, Kollam (hereinafter referred to as ‘Labour Court’ for short), issued Ext.A4 award in I.D.No.36/2021, directing the appellant to reinstate him into service with full backwages and continuity of service, as also other benefits, from 7.11.2019. This award has been challenged by the appellant before this Court in W.P.(C)No.17943/2024.
The first respondent, thereupon, filed I.A.No.1 of 2026 in the writ petition seeking a direction to the appellant to pay him wages under the afore cited provision; to which, the appellant filed objections on two counts: namely, (a) that he was gainfully employed at another establishment - namely, Indus Motors, Pathanamthitta - since 2019, and has not provided details regarding his resignation from it; and (b) that they had offered an alternative employment to him at their ‘sister concern’, which he had refused, thus disentitling him to any relief under Section 17B of the I.D.Act.
The learned Single Judge, however, allowed the I.A., repelling the afore objections; and the appellant is in appeal.
Sri.Benny P Thomas, learned Senior Counsel, instructed by Sri.Abel Tom Benny - learned counsel for the appellant, argued that the impugned order has been issued by the learned Single Judge without properly appreciating his client’s objections, much less adverting to them. He tried to impress upon us, taking us through the impugned order, that neither of the afore objections have been dealt with therein; and consequently, that his client is entitled to relief in this appeal.
Sri.H.Vishnudas - learned counsel for the first respondent, controverted the afore submissions, saying that both the above recorded objections are untenable because, for one, the allegation that his client was working in another establishment was raised before the Labour Court during adjudication, to be answered in favour of his client, thus leading to the issuance of Ext.P4 Award; and, for the second that, even taking that the appellant had offered his client an alternative employment in a ‘sister concern’, it would be of no avail, because such an offer - even assuming it was made - was at the time of the conciliation proceedings held before the District Labour Officer, Pathanamthitta, who had thereafter settled Ext.P5 Conciliation Report, recording failure; with the Labour Court adjudicating the matter, thereafter leading to the award. He prayed that this appeal be, therefore, dismissed.
We have given the afore rival submissions detailed thought, and have also examined the pleadings relevant to the impugned order.
The fact that the first respondent had obtained Ext.P4 Award from the Labour Court, and that the same is under challenge in the writ petition, being undisputed, he was certainly entitled to file the application seeking benefits under Section 17B of the I.D.Act.
The defence of the appellant to the said application was, as recorded above, that the first respondent was gainfully employed in another establishment; and, secondly that he had refused the offer of alternative employment offered by them.
Contrary to the submissions of the learned Senior Counsel for the appellant, the Single Judge has considered the merits of the second of the afore objections and found that an offer of reinstatement in a ‘sister concern’ could not be accepted, as the direction in the Award was to reinstate him in the appellant company itself.
It is true that the learned Judge did not answer the first objection specifically, but this would be of no consequence, as we will presently state.
The imputation that the first respondent is gainfully employed in another establishment was the defence impelled by the appellant before the Labour Court, when the dispute was being adjudicated by it. This has been found to be factually untrue by the said Court in the Award; and obviously, it is for the appellant to prove otherwise, when the writ petition is finally heard by this Court. They cannot, therefore, rely on this to oppose the application of the appellant under Section 17B of the I.D. Act.
As far as the assertion of offer of employment to the first respondent is concerned, the appellant themselves admit that such was made by them to their ‘sister concern’ at the time conciliation proceedings were held by the District Labour Officer, Pathanamthitta; and in fact, this is reflected in Ext.P5 Report of Conciliation, dated 23.12.2020. The said Report states luculently that the first respondent had refused to accept the offer; and it is thus that the dispute reached the Labour Court for adjudication. Therefore, to rely upon this “offer”, to oppose an application under Section 17B of the I.D. Act, can only be seen to be brinkmanship and a desperate attempt to avoid legal and statutory consequences. In any event, as rightly found by the learned Single Judge, even if an analogous offer is to be made now by the appellant to the first respondent, it would not save them from the rigour of Section 17B of the I.D.Act, because under the Award he has been ordered to be reinstated in their service.
This is manifest from the way the said Section is worded namely, that where a Labour Court, by its award, orders “reinstatement of any workman and the employer prefers any proceedings against it in a High Court or Supreme Court, which shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him”. The only manner in which the appellant can strive to avoid liability is by establishing that the first respondent is gainfully employed; but they have failed to do so.
In conspectus, therefore, we do not find this appeal worthy in merit; and consequently, dismiss it granting full imprimatur to the impugned judgment of the learned Single Judge.