Indian Labour Laws & Shram Suvidha Simplified
From India, Kolkata
From India, Kolkata
Hope you would bear with me for my preference to answer your open thread rather than your private message to me in view of its public importance.
As you are aware, any industrial dispute relating to non-employment can be dragged indefinitely by the employer if he desires not to take back an unwanted employee by exercising his different layers of legal right to appeal. With a view to curb such tendency only Section 17-B was introduced into the Industrial Disputes Act,1947 by the amending Act of 1984. The right created under this section is separate and independent right available to a workman, during the pendency of the proceedings before a High Court or the Supreme Court, where the proceedings have been preferred by the employer, against the award of reinstatement in his favour subject to the presence of the pre-requirements mentioned in your post. Even it can be said that once these requirements are satisfied, the workman becomes entitled to the wages as contemplated by the provision of sec.17-B and no order of the Court before which the proceedings are pending, is necessary for entitling him for such wages, as the statute itself creates the right. I think that it is suffice to highlight the importance and implication of this section whose ultimate objective is equitable dispensation of social justice to both the partners of production who are at variance.
Very well I can understand why you are taking cue from the judgment ( unreported?) of the hon'ble High Court of Jharkhand to outright rejection of this statutory concession granted to workmen deprived of their livelihood by the action of the employers. The question whether a workman is a regular workman of the Principal Employer or a Contract Labor engaged through a Contractor is certainly a question of fact and whether a Principal Employer is answerable to the termination of employment of a contract labor is a question of Law. Further more the ubiquitous presence of " Umbrella Contracts " now a days complicates the finding of proper answers to both these questions. Therefore, in my opinion, the entire matter becomes one to be decided on merits while disposing of the Writ filed under art.226 only and not in an interlocutory application for the payment of wages u/s 17-B pendente lite. Perhaps, that's the reason underlying behind the observation of the hon'ble High Court of Gujarat as cited above while granting the relief u/s 17B.
Without prejudice to my above stand, I shall proceed to mention some other cases denying rarely the benefit of sec.17B to the workman as you desired. A Division Bench of the Karnataka High Court held in Vysya Bank Ltd v.General Secretary, All India Vysya Bank Employees' Union [ 1996(1)LLJ.420 ] that the order of reinstatement by the Tribunal was purely on compassionate grounds which is not permissible or warranted under the provisions of S.11-A of the ID Act,1047 and therefore, prima facie, there was sufficient material on record to ignore the effect of S.17B and decline the relief thereunder by the Writ Court when the matter is before it.
From India, Salem