1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.102 OF 2008 IN WRIT PETITION NO. 2367 OF 2007 Kishor Ahuja ...Petitioner Vs. Balakrishna C. Kadam ...Respondent Ms. Hutoxi Tavadia i/b. Mr. H.V. Kode for Petitioner Mr.A.B. Desai for Respondent and in support of NM CORAM: SMT.ROSHAN DALVI, J. DATED: 16 TH JUNE, 2008 P.C. 1. The Applicant is the original Respondent No.1. He has claimed to be the employee of the Petitioner. His services are stated to have been terminated. Dispute in the Labour Court was filed. 2. The Respondent No.1 was directed to be reinstated with continuity of service and full back wages by the Labour Court. 3. The Petitioner has challenged that order in the above 2 Writ Petition. Pending the Writ Petition, the Petitioner was liable to pay Respondent No.1 full wages last drawn by him under Section 17- B of the Industrial Disputes Act, 1947. 4. The Petitioner failed to pay wages to the Respondent No.1 pending the Petition. Hence, this Notice of Motion/Application. 5. Section 17- B is very clear. The statutory liability is fixed upon the Employer. The Petitioner is shown to be the Employer in the Labour Court Proceeding/trial. 6. It is the Petitioner's case that he was not the Employer, but the management was transferred to Respondents 2 to 6 and consequently the Respondent No.1 should be paid the wages by Respondents 2 to 6 under the provisions of Section 25- FF of the Industrial Disputes Act, 1947. This aspect has to be considered in the Petition itself. It is upon this aspect that the case of the Petitioner for the liability to pay back wages and for the liability of reinstatement would be considered. 7. It is not an admitted position by the Respondent No.1 that the Petitioner was not his Employer. 3 8. The Advocate for the Petitioner has drawn my attention to paragraph 5 of the affidavit in support of this Notice of Motion, page 3 of the statement of claim filed by the Respondent No.1/Applicant in the Labour Court at Mumbai and page 29 of the complaint filed by the Petitioner against 2 of the Respondents in this Petition, before the Court of the Additional Chief Metropolitan Magistrate, in which certain statements of Respondent No.1 herein (Applicant) came to be recited by the Petitioner. None of these references show any admission, that the Petitioner was not the Employer of the Respondent No.1/Applicant. In fact, this very case is against the Petitioner alone and hence, he is taken by the Respondent to be his employer. 9. The Advocate for the Petitioner also drew my attention to the deposition of the Respondent No.1/Applicant, made before the Labour Court. In that deposition inter alia he has mentioned that initially in the year 1994- 95 for 2 years Gokul Dairy Farm (which was the business of the Petitioner) was handed over by the Petitioner and his brother to one Shantilal Dave, who is the Respondent No.2 herein. 10. It appears that the handing over of the Dairy was for a temporary period. Consequently it cannot amount to 4 transfer of undertaking as contemplated under Section 25- FF, since such transfer is necessarily a permanent transfer of undertaking. 11. It is seen that the order of the Labour Court has been challenged by the Petitioner by way of the Writ Petition. Pending the Writ Petition full wages of Respondent No.1 are required to be kept by the Petitioner as his employer. 12. It is contended on behalf of the Petitioner in the Writ Petition that an ad hoc amount has to be fixed. I do not find any provision in law, which entitles the High Court to fix an ad hoc amount of the wages payable to the employee in view of the term “full wages ----” in Section 17- B of the Industrial Disputes Act, 1947. 13. I have been shown an order of the Hon'ble Supreme Court in the case of Regional Engineering College, Warangal Vs. U.Cheralu (2000) 9 Supreme Court Cases 508 fixing an ad hoc amount payable by the College to the employee who was reinstated by an order of the Labour Court. In that case the question of law under Section 17- B was left open; the Petition was expedited. Rs.500/- per month was directed to be paid on ad hoc basis by the Supreme Court in lieu of reinstatement ordered of the 5 Labour Court pending the writ Petition in the High Court. The High Court, however, passed the order under Section17- B of the Industrial Disputes Act, pending the Writ Petition, with effect from the date of the reinstatement. All the arrears were directed to be payable within 3 months from the date of the Supreme Court order. Only with regard to the future amount, Rs.500/- as ad hoc was directed to be paid from month to month till the disposal of the Writ Petition which was expedited. The facts of that case are not known. The question of law under Section 17- B of the Industrial Disputes Act was not considered. The High Court had already granted relief under Section 17- B pending the Writ Petition. This order cannot be used by the Petitioner for obtaining the ad hoc amount from this Court pending the writ Petition. 14. It will now have to be determined as to from which date the full wages are required to be paid by the Petitioner to the Respondent No.1/Applicant. 15. The Respondent No.1 claims an oral termination of his employment on 30 th June, 1996. The order of the Labour Court of instatement and back wages is passed on 31 st December, 2004. Upon it having been challenged in this Writ Petition, rule came to be granted on 30 th October, 2005. 6 Respondent No.1 / Applicant filed his affidavit as well as this application on 29 th February, 2008. 16. The payment of full wages becomes the statutory liability under Section 17- B only if the workman is not employed in any establishment during the period of the Writ Petition and he files an affidavit to that effect in Court. Consequently it is seen that the statutory liability does not arise ipso facto upon the writ Petition being filed in Court by the Employer challenging the Labour Court Award of reinstatement or back wages. It arises if the workman is not employed elsewhere and shows that fact. That the liability has to be met pending the writ jurisdiction. Consequently, as held in the case of Uttaranchal Forest Development Corporation Vs. K.B. Singh (2005) 11 SCC 449 , the date of the filing of the affidavit of the workman to the effect that he is unemployed or the date of making his application for such payment after showing that he is unemployed is the date from which the liability of the Employer becomes due under Section 17- B of the Industrial Disputes Act. 17. That liability in this case is the date of the filing of this Notice of Motion. No affidavit in reply has been filed by the Respondent No.1/Applicant in the Writ Petition. This Notice of Motion has been taken out and an affidavit in reply 7 thereto, filed by the Respondent No.1 on 29th February, 2008. 18. This Notice of Motion has been served upon the Petitioner on 19 th March, 2008. 19. The Petitioner, who has filed the Writ Petition as an Employer, is therefore, liable to pay full wages to the Respondent No.1/Applicant herein on and from March, 2008. 20. The Petitioner shall be entitled to claim, any part of this liability upon payments being made to the Respondent No.1/Applicant, from Respondents 2 to 5, if the Petitioner is entitled. (SMT. ROSHAN DALVI, J.)