In one of our ongoing matter at Gujarat High Court challenging award of Labor Court about reinstatement of a Contract Labor, the court has granted interim relief subject to compliance of Section 17-B of the Industrial Dispute Act,1947. In the order granting interim relief Hon. Court has mentioned that "Considering the nature of dispute decided by the labor court and having regard to the stand taken by the petitioner (i.e. the company) that the respondent no. 1 (i.e. Contract Labor) was the contractor's worker, the court finds that the petitioner has made out a case for grant of interim relief, Hence relief is granted subject to compliance of Sec 17-B of the Industrial Dispute Act,1947.
The provisions of Sec.17-B are very clear & entitles a workman for the benefits, if following 05 conditions are satisfied.
1. There should be an order of reinstatement
2. The employer should prefer proceedings against the order in High Court Or Supreme Court
3. The workman should be employed in any establishment during pendency of the proceedings
4. The workman should file an affidavit before such court to that effect
5. Such court should be satisfied that the workman had neither been employed nor had been receiving adequate remuneration during such period.
The only relief available with the employer is to prove that the said workman is gainfully employed & has been receiving adequate remuneration and in that case the workman will not be entitled to benefits under section 17-B.
In this context, there is one judgement of High Court of Jharkhand in LPA No 267 of 2012 wherein court has mentioned that "Refusing relief under section 17-B an exception, as it would be in the rarest of the rare cases. The case may be only those where an award is challenged on the basic issue of jurisdictional error or error apparent on the face of the award. One instance of jurisdictional error can be about the absence of the relationship of workman and the employer between the parties. If the writ petitioner challenging the award before the High Court genuinely, bonafide, seriously and gravely raises the question of absence of this relationship and the High Court is satisfied prima facie in full measure with reference to such contention of the writ petitioner, which have to be dully supported by material on record and the High Court comes to a prima facie conclusion that indeed very serious and grave doubts do exist with respect to the question of such relationship between the parties, it can refuse to pass an order under section 17-B of the Act.
I was trying to establish the correlation between our case & the above judgement to refuse benefits under section 17-B of the Act, as in our case also High Court has prima facie agreed to stand taken by us that the respondent no.1 is contractor's worker. Request legal opinion & views with other such judgements, if any refusing benefits under section 17-B on such ground.
From India, Rajkot
7The provisions of Sec.17-B are very clear & entitles a workman for the benefits, if following 05 conditions are satisfied.
1. There should be an order of reinstatement
2. The employer should prefer proceedings against the order in High Court Or Supreme Court
3. The workman should be employed in any establishment during pendency of the proceedings
4. The workman should file an affidavit before such court to that effect
5. Such court should be satisfied that the workman had neither been employed nor had been receiving adequate remuneration during such period.
The only relief available with the employer is to prove that the said workman is gainfully employed & has been receiving adequate remuneration and in that case the workman will not be entitled to benefits under section 17-B.
In this context, there is one judgement of High Court of Jharkhand in LPA No 267 of 2012 wherein court has mentioned that "Refusing relief under section 17-B an exception, as it would be in the rarest of the rare cases. The case may be only those where an award is challenged on the basic issue of jurisdictional error or error apparent on the face of the award. One instance of jurisdictional error can be about the absence of the relationship of workman and the employer between the parties. If the writ petitioner challenging the award before the High Court genuinely, bonafide, seriously and gravely raises the question of absence of this relationship and the High Court is satisfied prima facie in full measure with reference to such contention of the writ petitioner, which have to be dully supported by material on record and the High Court comes to a prima facie conclusion that indeed very serious and grave doubts do exist with respect to the question of such relationship between the parties, it can refuse to pass an order under section 17-B of the Act.
I was trying to establish the correlation between our case & the above judgement to refuse benefits under section 17-B of the Act, as in our case also High Court has prima facie agreed to stand taken by us that the respondent no.1 is contractor's worker. Request legal opinion & views with other such judgements, if any refusing benefits under section 17-B on such ground.
From India, Rajkot
I am of the opinion that Honorable Gujarat HC has given such judgment in light of proviso of Section 17 B. Relief is granted if workmen has been employed & has received adequate remuneration during pendency of proceedings. This is a established provision and will not be effected by Honorable Jharkhand HC judgment. See this Indian Labour Laws & Shram Suvidha Simplified
From India, Kolkata
From India, Kolkata
Dear Rajendra,
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
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
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