Karnataka High Court
Neelaiah G.M. vs Karnataka State Tourism Development ... on 10 March, 1998
Equivalent citations: (1999)ILLJ146KANT
Author: B. Padmaraj
Bench: B. Padmaraj
ORDER Bakthavatsalam, J.
1. Respondent No. 1 has preferred a writ petition against the order of the II Addl. Labour Court, Bangalore under which the Labour Court has passed an award setting aside the order of termination passed against the appellant and ordering reinstatement with continuity of service with other consequential benefits apart from granting backwages at 40% from the date of termination till the date of reinstatement. In that writ petition R-1 worker has filed I.A.I under Section 17B of the Industrial Disputes Act ('I.D. Act' for short). In that application the workman has specifically pleaded that he has not been gainfully employed and has no source of income to sustain himself. The learned single Judge has heard I.A.I. for direction and ordered I.A.I in favour of Rule 1. However, while ordering the application under Section 17B of the I.D. Act, the learned single Judge had made it a conditional order asking the respondent-worker to file an undertaking to this Court that in case the award is finally set aside by this Court in the writ petition, the benefit, if any, derived by the worker in terms of the order and the provisions of Section 17B of the I.D.Act shall be reimbursed by him to the employer. Against this portion of the order where condition has been imposed, the respondent-worker has come on appeal.
2. Learned counsel for the appellant worker contended that the learned single Judge while passing an order under Section 17B of the Act ought not to have imposed the condition as has been imposed in the order of the learned single Judge. The learned counsel states that no question of reimbursement arises whenever an order is passed under Section 17B of the Act and if such conditional order is passed it amounts to taking away the effect of Section 17B of the Act itself. The learned counsel points out that the only condition which the worker has to show before the High Court or the Supreme Court is that a workman had not been employed in any establishment during such period and an affidavit of such workman has to be filed. Learned counsel refers us to the proviso to Section 17B of the Act by which the Courts are empowered to deny the benefit under Section 17B of the Act if workman had been employed for any such period or part thereof. As such the learned counsel for the appellant contends that, that portion of the order of the learned single Judge which imposed condition has got to be set aside.
3. Learned counsel appearing for the Corporation states that an order under Section 17B of the Act is merely discretionary and when the learned single Judge has passed a conditional order by exercising its discretion, this court should not entertain the appeal itself. According to the learned counsel, an order under Section 17B of the Act is a discretionary order and the court can deny the benefit completely to a workman. Learned counsel refers to a decision of Bombay High Court in ELPRO International Ltd. v. K.B. Joshi and Ors. (1987-II-LLJ-210). The Division Bench of the Bombay High Court held that Section 17B does not encroach upon the powers of the High Court or the Supreme Court. According to the learned counsel, this Judgment of the Bombay High Court supports his contention.
4. We have heard Sri K. Subba Rao, learned counsel for the appellant and Sri. B.C. Prabhakar, learned counsel for R-1 Corporation.
5: It is necessary to set out Section 17B of the Act which runs as follows:
"Payment of full wages to workman pending proceedings in higher Courts-where in any case a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court:
Provided that where it is proved to the satisfaction of the High court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this Section for such period or part, as the case may be."
In Bharat Singh v. Management of New Delhi Tuberculosis Centre, New Delhi and Ors. (1986-II-LLJ-217), wherein the Supreme Court has succinctly brought out the necessary ingredients for the applications of Section 17B of the Act in parapraph-6 of the judgment. The three necessary ingredients for the applications of Section 17B of the Act are: (1) the Labour Court should have directed reinstatement of the workman, (ii) the employer should have preferred proceedings against such award in the High Court or in the Supreme Court and (iii) that the workman should not have been employed in any establishment during such period. While considering the scope of Section 17B of the Act, the Supreme Court observed at para-8 of its judgment, which is as follows:
"It is common knowledge that even before Section 17B was enacted, Courts were, in their discretion, awarding wages to workmen when they felt such a direction was necessary but that was only a discretionary remedy depending upon Court to Court. Instances are legion where workmen have been dragged by the employer in endless litigation with preliminary objections and other technical pleas to tire them out. A fight between a workman and his employer is often times an unequal fight. The legislature was thus aware that because of the long pendency of disputes in Tribunals and Courts on account of the dilatory tactics adopted by the employer, workmen had suffered. It is against this Section has to be viewed and its effects considered."
6. Applying the principles with regard to the interpretation of statutes, the Supreme Court has held that the construction which would defeat the rights of the parties and which would lead to injustice should always be avoided. It has been stated that the Section is intended to benefit the workmen in certain cases. As such we have no hesitation to hold that the introduction of Section 17B of the Act, itself shows that it is done where it is found that the wages were awarded to workmen by the Courts by exercising discretionary powers. In our view, after the introduction of Section 17B of the Act Courts have to look into provisions of the Act and this being the beneficial legislation, it has to be interpreted in such a way to benefit the employees-workers. We are of the view that the only condition the Parliament has provided is the proviso to Section 17B of the Act as can be seen above. Apart from that, we are of the view that Court has no discretion to deny the remedy and impose a condition under Section 17B of the Act. It is very clear that the Section has recognised the right of workmen to claim wages under Section 17B of the Act and Court should not construe it in a manner detrimental to workmen to defeat its object and therefore we are of the view that the learned single Judge was not correct in imposing the condition in an order passed under Section 17B of the Act.
7. That apart, even the Division Bench of the Bombay High Court has not considered the question whether it is discretionary remedy or not. In fact, the judgment of the Bombay High Court relied on by the counsel for the Corporation supports the view taken by us. In (1987-II-LLJ-210) (supra) the Bombay High Court has held that:
"So far as the challenge to Section 17B of the Act based on the ground that it either interferes or encroaches upon the Constitutional powers of the High Courts or the Supreme Court is concerned, from the bare reading of this Section it is clear that it does not even remotely refer to the powers of the Courts under Articles 136 or 226, much less of restricting the said powers. This Section only guarantees to the workman the payment of wages by the employer during the pendency of the proceedings before the High Court or the Supreme Court, and that too subject to the conditions laid down by the said Section and the proviso, irrespective of the result of the proceedings. It also imposes an obligation upon the workman concerned to file an affidavit before the Court stating that he has not been employed in any establishment during the pendency of the proceedings. It also absolves the employer of his obligation to pay such wages, if he is able to prove to the satisfaction of the Court that the workman had been otherwise employed and had been receiving adequate remuneration. As already observed Section 17B operates within a limited sphere. Its operation is subject to conditions laid down by the Section itself. Section nowhere lays down that in extreme cases where it is demonstrated that the award passed is either without jurisdiction or is otherwise a nullity or grossly erroneous or perverse, the High Court or the Supreme Court is debarred from exercising its powers under Articles 226 and 136 of the Constitution. Therefore, it is not possible for us to accept the contention that Section 17B is void as it encroaches upon or overrides the powers of the High Court or Supreme Court of India under Articles 226 and 136 of the Constitution of India. The powers of the High Courts or the Supreme Court under Articles 226 and 136 of the Coastitution are paramount and Section 17B does not interfere nor restrict the said Constitutional powers."
8. We do not think the Division Bench of the Bombay High Court has taken a different view as contended by the learned counsel for the Corporation. What all has been stated is that the power under Article 226 is kept intact and while coasidering the validity of Section 17B of the Act the Bombay High Court has held that Section 17B is merely regulatory and it does not interfere with or restrict the constitutional powers under Article 226 of the Constitution. In fact, the Bombay High Court has held that Section 17B guarantees the workmen the payment of wages by the employer during the pendency of the proceedings before the High Court or the Supreme Court subject to the conditions laid down by the said section.
9. The view we take is that no discretion is vested on this Court whenever an application is made under Section 17B of the Act. It may be open to this Court to deny the benefit completely if the conditions set out in the section are not satisfied. But once the conditions set out in the section are satisfied we do not think any rider can be added under Section 17B of the Act as has been done by the learned single Judge. In view of that, that portion of the order of the learned single Judge imposing condition with regard to reimbursement is set aside. The appeal is allowed.
10. Though a time of 4 weeks is sought for payment since the impugned order has been passed 4 months back, the Corporation is directed to comply with the order within 2 weeks from today.