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TMI Blog2015 (7) TMI 1378X X X X Extracts X X X X X X X X Extracts X X X X ..... that if such a decision is given effect to, it will be inexpedient on public grounds affecting national economy or social justice. Therefore, on this ground, the claim of the petitioner cannot be entertained. The prayer made by the petitioner seeking a direction to the appropriate Govt. to modify the award by exercising the power under section 17A of the Act is wholly untenable inasmuch as the said provision has been held to be unconstitutional and unenforceable - Petition dismissed. - WP(C) No. 6968/2013 - - - Dated:- 21-7-2015 - UJJAL BHUYAN, J. For Appellant : N.N. Karmakar and S. Islam, Advocates For Respondent : S.N. Sarma, Senior Advocate, A. Zahid, Advocate and B.J. Talukdar, Govt. Advocate JUDGMENT Ujjal Bhuyan, J. 1. Heard Mr. NN Karmakar, learned counsel for the petitioner and Mr. S.N. Sarma, learned Senior Counsel assisted by Mr. A. Zahid, learned counsel for respondent No. 3. Also heard Mr. B.J. Talukdar, learned Govt. Advocate, Assam. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks a direction to respondent No. 1 to pass an order modifying the award dated 30.03.2013, passed by the learned L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. On the other hand, management contends that the workman was dismissed from service on 20.05.2010 because of her misconduct. She was appointed on 12.04.2010 and was paid her salary for the month of April, 2010. 8. In the course of the proceeding, the management side examined three witnesses while the workman examined four witnesses to support her case. 9. After hearing learned counsel for the parties and on perusal of the materials on record, learned Labour Court came to the conclusion that management had failed to establish the charge levelled against the workman. It was further held that management did not hold any valid domestic inquiry before terminating the service of the workman. Consequently, issue No. 1 was answered by holding that management was not justified in dismissing or discharging the workman from her service. Following the above, issue No. 2 was answered by holding that the workman was entitled to be reinstated in service with full back wages. On the claim of the workman that she was paid less amount than what she was entitled to, learned Labour Court was of the opinion that this was a matter to be considered by a separate forum and declined to grant her an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... workman, Court thought it fit to interact with the petitioner in person. Accordingly, petitioner appeared before the Court on 15.07.2015 and explained the circumstances leading to filing of the present writ petition, which have been mentioned in the order dated 15.07.2015. 16. Since the award dated 30.03.2013 has not been put to challenge by the management, therefore, it is considered not necessary to delve deep into the substance of the award. However, for effective adjudication of the case, relevant portion of the award is quoted hereunder:-- 13. In view of the above, I find and hold that the management did not hold any valid domestic enquiry before terminating the service of the workman. 14. Let us now see whether the management is able to prove the charges levelled against the workman on merit. From Ext.H show cause notice, it is seen that the concerned workman Rehena Begum as well as another workman Hitesh Deka were jointly charged with not delivering three bags of tea of garden Kesarbari and New Sonowal to two companies namely M/s. Golden Tea Company, Guwahati and M/s. Navayug Tea Company, Guwahati. Examined as DW-1 Manirul Hasan one of the partners of the man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h former co-workers of concerned workman Smt. Rehena Begum have clearly said that the concerned workman is not working under any other management during the intervening period and their such claim is not disputed by the management during their cross-examination. On the other hand, the management witnesses have also not claimed during their evidence that the concerned workman so worked during the period. Thus, the evidence on record has satisfactorily established that the workman was not gainfully employed during the intervening period. In view of the above, I find and hold that the concerned workman is entitled to full back wages. In her W.S evidence the concerned workman has claimed that the management paid her less amount than she was entitled to and so she has claimed an amount on that count. However, in my considered view the said claim of the concerned workman is a matter to be considered by a separate forum under separate section of law. And hence, this Court is unable to grant her any relief on that count. 19. From the above, it is found and held that the management of Green Field Tea Warehouse, is not justified in dismissing/discharging workman Smt. Rehena Beg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into operation on the date when the award becomes enforceable under sub-section (1) or sub-section (3), as the case may be. 18. A careful reading of the provisions of Section 17A would show that an award shall become enforceable on the expiry of 30 days from the date of its publication in terms of section 17 of the Act. However, if the appropriate Govt., in this case the State Govt., is of the opinion that it will be inexpedient on public grounds affecting national economy or social justice to give effect to the whole or any part of the award, the appropriate Govt. may by notification in the official gazette declare that such award shall not become enforceable on the expiry of the said period of 30 days. After such declaration is made, the appropriate Govt. may within 90 days from the date of publication of the award under section 17 make an order rejecting or modifying the award and shall on the first available opportunity lay the award together with a copy of the order so passed before the Legislature of the State. After it is laid before the Legislature, such award shall become enforceable on the expiry of 15 days. Therefore, from an analysis of the aforesaid provisions, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on public grounds affecting national economy or social justice. Therefore, on this ground, the claim of the petitioner cannot be entertained. 21. There is one more aspect to this issue. Provisions of section 17A of the Act have been held to be unconstitutional by the Andhra Pradesh High Court in Telugunadu Work charged Employees State Federation v. Government of India, reported in 1997 (3) ALT 492. This decision has been followed by a Division Bench of the Madras High Court in Union of India v. Textile Technical Tradesmen Association, reported in (2014) 4 LLJ 683 (Mad) . In the said decision, the Andhra Pradesh High Court has held as under:-- The Constitution has assigned the Courts the function of determining as to whether the laws made by the legislature are in conformity with the provisions of the Constitution. In adjudicating the constitutional validity of the statutes, the Courts discharge an obligation which has been imposed on them by the Constitution. The Courts would be shirking their responsibility if they hesitate to declare the provisions of a statute to be unconstitutional, even though those provisions are found to be violative of constitutional scheme or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted in AIR 2014 Kant 73 considered a similar issue and held that pronouncement on the constitutionality of a provision of a central Act by the Kerala High Court would be applicable throughout India. 24. I am in respectful agreement with the views expressed by the Madras High Court as well as by the Karnataka High Court and the decision of the Andhra Pradesh High Court in the case of Telugunadu Work charged Employees State Federation (Supra). Both Andhra Pradesh High Court and Madras High Court have held the provisions of section 17A of the Act to be unconstitutional which will have effect throughout the territory of India. 25. In the light of the above, the prayer made by the petitioner seeking a direction to the appropriate Govt. to modify the award dated 30.03.2013 by exercising the power under section 17A of the Act is wholly untenable inasmuch as the said provision has been held to be unconstitutional and unenforceable by the Andhra Pradesh High Court and reaffirmed by the Madras High Court as discussed above. Therefore, no such direction can be issued. 26. For all the aforesaid reasons, relief sought for by the petitioner cannot be acceded to. Accordingly, writ petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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