Aniruddha Bose, J.:— The Court:- The present application (GA No. 2922 of 2011) arises out of WP No. 613 of 2011 filed by the writ petitioners challenging an award of the Second Industrial Tribunal, West Bengal. The dispute out of which the instant writ petition arises originates from an order terminating the service of respondent no. 4 by the writ petitioner no. 1 after domestic enquiry. In the award, the respondent no. 4 was directed to be reinstated in service along with payment of backwages and consequential reliefs.

In connection with the writ petition, the instant application was taken out under section 17B of the Industrial Disputes Act, 1947. The said proceeding has been contested by the employer, being the writ petitioners, inter alia, on the ground that the condition precedent for granting relief under the aforesaid provision has not been satisfied and onus has not been discharged by the workman to the effect that he remained unemployed subsequent to his termination. Another issue has been raised as a corollary to the main issue which would require adjudication. If the main defence of the employer in this proceeding is to be rejected, that is, as to what would be the quantum of ‘full wages last drawn’ and payable to him if the present application succeeded on merits.

So far as the entitlement of the respondent no. 4 to get relief under Section 17B of the Act is concerned, I find that in paragraphs 6 and 7 he has made out a broad case of being without employment and without any kind of earning.

In these two paragraphs it has been stated:-

“6. That the Applicant/Respondent No. 4 abovenamed states that the Applicant has been passing though extreme financial stringencies after being thrown out of employment illegally on 07.02.2005

7. That the Applicant/Respondent No. 4 states that the Applicant is without employment and without any kind of earning, and as such the Applicant is entitled to get relief under Section 17(B) of the Industrial Disputes Act, 1947.”

Mr. Sinha, learned Counsel appearing for the writ petitioner, however, submits that no specific point has been taken as to whether the workman was without any employment since termination of his service and the pleadings in this regard is vague. He wants this Court to dismiss this application because of inadequate pleadings.

Mr. Das Gupta, learned Counsel appearing for the workman, has brought my attention to the affidavit-in-reply of the respondent no. 4 to the present application. In this affidavit it has been affirmed on oath that he has been without employment since the date of his ‘illegal termination of service’ effective on and from 7th February, 2005.

In my opinion, in the instant case, the workman has discharged his onus of proving that he was without employment. Affirmation of statement to that effect on oath, in my opinion, is sufficient to discharge such onus and unless the employer comes up with specific case rebutting the assertion that such workman was employed elsewhere, this Court would proceed on the basis that the workman was entitled to relief under the said provision. To rebut such assertion, it would be the duty of the employer to disclose the particulars of employment of the workman and prove the same to the satisfaction of the Court. This is the mandate of the legislature under the proviso to Section 17B of the Act. The writ petitioners in this case has failed to come up with a specific case that the respondent no. 4 was employed elsewhere during the period he remained under termination and hence the workman is entitled to obtain the benefit postulated in Section 17B of the Act.

As regards inadequacy of pleadings, it is true that in the application, it was not specifically stated that the workman has not been engaged in any gainful employment from the date of his termination, which lacuna, however, has been filled up in the reply affidavit. In any event, I do not think such precise and specific pleadings is necessary to sustain the claim of workman under Section 17B of the Act unless the employer comes with a specific case to the contrary with adequate supporting material. The employer has not come up in this case with such supporting evidence.

Now, I shall turn to the question as to what would be the quantum of relief under the aforesaid provision. From the pay advice of the respondent no. 4 for the month of January 2004, I find that his gross earning was Rs. 2230/= whereas there was deduction on account of Provident Fund, Professional Tax and E.S.I contribution totalling to Rs. 315/=. Net amount paid to him as per the pay advice, is Rs. 1915/= per month as on that date. Though the pay advice for the month of January 2004 was not the last month of his service before the act of termination which is the subject of controversy in this writ petition, the writ petitioners have not come with any other alternate figure. Hence I am proceeding on the basis that the quantum of pay reflected in pay advice slip would constitute the last drawn pay of the respondent no. 4.

Mr. Das Gupta, learned Counsel has submitted that the expression used in Section 17B is ‘full wages last drawn’ and this would imply wages drawn by him from the Company and not what he actually received in his hands. Thus, the contribution going towards Provident Fund or E.S.I or for that matter professional tax would have to be computed for the purpose of quantifying such sum. He founded his argument on the ground that this amount was flowing out of the company to different statutory bodies and upon termination of an employee, there was no obligation on the part of the employer to remit the said sum towards Provident Fund, Professional Tax and E.S.I contribution. Relying on a decision of the Supreme Court in the case of Dena Bank v. Kiritikumar T. Patel reported in 1998 (1) I.L.L.J 13, he has submitted that what the law postulates is the rate at which such wages was last drawn and not what an employee actually got in the month preceding the date of his termination. In an unreported judgement of this Court in the case of Machino Techno Sales Ltd. v. Noreen Paul [C.O No. 3977 of 2008) delivered on 8 April, 2009 which has been relied upon by Mr. Das Gupta in support of his submission, the Court was concerned with the meaning of the expression ‘full wages last drawn’ and it was held:-

“It cannot, by any stretch of imagination or any stretch of clarification, be said that ‘full wages drawn’ means what amount of wages the workman could have got after his promotion or after his revision or after his enhancement of D.A etc. It has to be remembered that this is a relief granted to the workman for his struggle against the company; this is neither an economic concession nor a consequential benefit of a result of collective bargaining. The amount the legislature intended to allow to the petitioner is an amount which he used to take home or which he used to get in hand on the date of his termination as has been made clear in Dena Bank's case, the learned Counsel for the applicant submitted with much emphasis that the gross pay should be given to the employee but as observed earlier this is neither an economic concession nor a resultant effect or consequential benefit of a collective bargaining. This is a relief granted by the statute to the workman so that he can fight out the writ petition or he can run his family during the pendency of the writ petition before the High Court or the Supreme Court. The learned Counsel for the applicant submitted with much emphasis that in such circumstances the workman should be paid back wages or a portion of back wages as has been observed in Dena Bank's or in Varadraja's case (supra). In this context, it has to be borne in mind that ultimately termination may be legal and may be illegal which cannot be decided now. Then of course there will be a question of recovery if any excess amount is paid. Therefore, excess amount, in the form of a gratuitous relief has not been made in the legislature or in Dena Bank's case also. In Dena Bank's case, the Hon'ble Supreme Court, in my opinion, pointed out that if there is any extraordinary circumstances, then the court can grant some more payment, but not in all the cases and if a question of termination is taken into consideration but ultimately it may be found that the termination is legal or illegal.”

He has also fairly referred to another unreported judgment of this Court in WP No. 400 of 2010 (Ranbaxy Laboratories Ltd. v. State of West Bengal) in which the same provision of the law was examined and a contrary view was taken by an Hon'ble Single Judge of this Court. It was held in this case:-

“The word ‘draw’ in plain and simple English language means, what is extracted from something. It can also mean, an amount which is capable of being extracted and delivered unto the hand of the person receiving the same. In other words, though the gross salary was at the rate of Rs. 14,865.80/- but what the concerned Workman could actually extract was only Rs. 9,029.30/- after deduction of statutory taxes etc. Therefore, the amount that he actually ‘drew’ was not Rs. 14,865.80/- but only a sum of Rs. 9029.30/-. This interpretation is based on the language used by the Legislature in section 17B of the Industrial Disputes Act, 1947 and this interpretation is also based on the interpretation of the Hon'ble Supreme Court given in paragraphs 20 and 21 of the case of Dena Bank v. Kiritikumar T. Patel referred to above. Moreover, in the definition of the word ‘Draw’ as defined in the Blacks Law Dictionary (9 Edition), the expression, is defined as “to take out (money) from a Bank, Treasury or Depository”. In other words, it is what a person draws from his bank account. On the basis of the aforementioned reasoning, this Court has come to a conclusion that the concerned Workman is actually entitled to a sum of Rs. 9029.30/- as “last drawn wages” drawn and not Rs. 11,000/- as was earlier ordered.

Under the circumstance and till the Writ Petition is finally disposed of, the concerned Workman shall now receive henceforth a sum of Rs. 9029.30/-. However, in the facts and circumstances of this case, he shall not be asked to refund the excess amount that he has already received. The main Writ Petition shall now be placed for hearing on the 30 of November, 2011.”

The two other authorities were cited being the case of Suresh Mahato v. G.E Industrial Pvt. Ltd. reported in 2009-IV-LLJ-489(Cal) and a Full Bench decision of the Kerala High Court in the case of South Indian Workers Congress v. Sree Sankara University of Sanskrit reported in 2010 (1) LLJ 276 (Kerala). But neither of these two decisions address this specific question, that is what would constitute ‘full wages last drawn’.

Appearing for the writ petitioner Mr. Sinha has relied on the judgement of this Court in the case of Ranbaxy Laboratories Ltd. as well as an earlier decision, being the case of Hooghly Printing Co. Ltd. v. State of West Bengal reported in 2004 III CLR 794.

In the latter case, the question as to whether wages would be at the revised scale or what the employee was drawing at the point of time his service was terminated it was held:

“Now, what would be the position of full wages last drawn? These terms “full wages last drawn” are to be looked into from the angle as if the worker was in service, that is, if the workman would have been in service, what he would have got as his wages, that is, the amount what the workman would have taken home at the end of the month, to be more clear and specific, it must be stated that the intent of the legislature is that on the date of termination, the amount towards wages which the petitioner could have got in hand or could have taken home towards his emolument that should be the full wages drawn”.

The question which requires to be answered thus is as to whether the expression ‘full wages last drawn’ would imply what was going out of the company's coffers in respect of a workman at the relevant point of time or what was coming in the hands of the workman concerned at that point of time. In the case of Ranbaxy Laboratories Ltd. and Hooghly Printing Co. Ltd. [supra], Their Lordships have taken the view that what was reaching the concerned workman at the relevant point of time would be ‘full wages last drawn’ and not what was leaving the company's coffers on account of the workman, where portion of it was intercepted midway mostly in terms of certain beneficial legislative provisions like Provident Fund or Employees State Insurance contribution and other statutory dues like professional tax. In the event the two decisions of this Court held in the cases of Ranbaxy Laboratories Ltd. and Hooghly Printing Co. Ltd. were not there, I might have had considered holding that full wages last drawn would imply what was leaving the company's coffers on account of the concerned workman and not what was directly reaching the workman because whatever was being remitted to the E.S.I authorities or the Provident Fund authorities would have constituted sums drawn by the workman but remitted for his own benefit to certain statutory authorities.

But there being two judgements of this Court in which a contrary view is taken, judicial propriety demands that I follow the ratio of the said decisions, which I do in this case.

I, accordingly, hold that what shall be paid to the workman would be the net sum drawn by him being Rs. 1915/- but added to this would be Rs. 25/- as professional tax, since this was deducted from his wages and at the point of time subsequent to his termination, he cannot be said to be in a profession, he cannot be required to pay professional tax unless his reinstatement is subsequently confirmed and he was treated to be in service for the entire period.

The application is, accordingly, allowed and the quantum to be paid shall be from the date of institution of the writ petition and the same shall be computed in terms of direction contained in the proceding paragraphs.

The main writ petition may be placed for hearing in the Monthly List of January, 2012.

There shall be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.