Madhya Pradesh High Court
Registrar vs Prasanna Kumar Dandpat on 22 December, 2016
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Writ Petition No.4913/2014
22.12.2016
Smt. Nirmala Nayak, learned counsel for petitioner.
Shri Ashok Shrivastava, learned counsel for respondent.
The matter is taken up in furtherance to order-dated
3.11.2016 passed by learned Division Bench in Writ Appeal
No.724/2016 to reconsider the entire matter and decide the
application under Section 17-B of the Industrial Disputes Act,
1947 (for short '1947 Act') afresh in accordance with law.
Learned counsel for the parties are heard at length.
It is not in dispute that present writ petition under Article
227 of the Constitution of India is directed against the Award-
dated 21.1.2014 passed in Case No.201-10-ID Ref.; whereby,
the Labour Court directed the reinstatement of the respondent
with 25% back-wages.
On 24.3.2014, while admitting the writ petition for
hearing, the operation and effect of the Award was stayed
subject to compliance of the provisions of Section 17-B of 1947
Act.
That, I.A. No.7538/2014 was filed by the petitioners,
whereby they sought modification of order-dated 24.3.2014. By
order-dated 3.12.2014, taking into consideration the letter dated
14.5.2014 issued by Assistant Manager, Human Resources,
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Writ Petition No.4913/2014
Prasanna Purple Mobility Solution Private Limited, Bhopal,
indicating that the respondent-workman was employed on the
post of cashier for the period 20.9.2011 to 14.5.2014, the order-
dated 24.3.2014 was modified to the extent that the
requirement of compliance of Section 17-B of 1947 Act was
dispensed with. The order was assailed in WA-95-2015, which
was disposed of on 9.4.2015 in the following terms :
"It seems that except resignation letter, no affidavit
was filed by the appellant as required under
the provisions of Section 17-B of the Act and,
therefore, in dismissing the prayer for grant of
benefit of Section 17-B, the learned writ court
has not committed any error. Even otherwise, if
the petitioner as on date is not gainfully
employed anywhere and if the petitioner feels that
due to his resignation from the establishment as
indicated hereinabove he is entitled for Section 17-B
he is free to file separate application afresh
indicating all the facts in accordance with the
requirement of Section 17-B of the Act and if such
an application is filed then it is well within the
jurisdiction of the learned writ court to take note of
the same and take fresh decision in accordance with
law."
Respondent-workman thereafter filed I.A. No.4346/2015
stating therein that being employed with M/s Prasanna Purple
Mobility Solution Private Limited, he resigned from their service
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Writ Petition No.4913/2014
w.e.f. 21.11.2014, accordingly, claimed that he will be entitled
for the wages last drawn by him w.e.f. 22.11.2014 as since then
he is not in employment. This application was filed on 28.4.2015
supported by an affidavit.
The petitioner file reply to I.A. No.4346/2015 in three
different mode. Firstly, reply was filed on 14.5.2015 vide I.A.
No.5256/2015 stating therein that after the modification of
order-dated 24.3.2015, no occasion arises to comply the
provisions of Section 17-B of 1947 Act. Secondly, additional
reply was filed on 28.8.2015 vide I.A. No.9443/2015; whereby,
the petitioner raised the cavil as to the manner in which the
resignation was said to be given by the respondent-workman
and whether the resignation was accepted. It is urged that
being clearly provided under Section 17-B that the workman
should not be gainfully employed and unless it is stated so, the
respondent will not be benefited only by stating that he is
unemployed. It is further contended that the respondent since
was appointed on contractual basis, his services were dispensed
with as he was found involved in criminal conspiracy which fact
was overlooked by the Labour Court. This submission however,
will not be of any consequence which dealing the issue under
Section 17-B. Thereafter, the petitioner has filed objection on
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Writ Petition No.4913/2014
14.7.2016 vide I.A. No.8416/2016 stating therein that the
respondent will not be entitled for backwages for the following
reasons : -
(a) That, this Hon'ble Court directed to
compliance of Section 17-B of the Industrial
Disputes Act the petitioner was already employed
before M/s Prasanna Purple Mobility Solution Pvt.
Ltd. Bhopal (M.P.) then the application for
modification was filed vide I.A. No.7538/2014 with
enclosure Annexure P/6 (document regarding that
the respondent was working from 20.9.2011 in
three set up). So, the application for modification
was allowed by this Hon'ble Court on 3.12.2014 with
the condition for dispense with Section 17B of the
Industrial Disputes Act.
(b) That, the order-dated 3.12.2014 passed by
the writ court was challenged in writ appeal being
W.A. No.95/2015 and the writ appeal was dismissed
with liberty to file fresh application (if respondent
feels) and observed that the writ court not
committed any error and also directed to decide the
fresh application according to law.
(c) That, the important facts suppressed by the
respondent before writ appellate court, that one
more interim application for compliance of section
17-B of I.D. Act also dismissed by the writ court on
10.12.2014 being I.A. No.10645/2014, after
resignation of the respondent the petitioner is
unemployed the document was on record, the same
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Writ Petition No.4913/2014
is not challenged in writ appeal, thus still the order
of writ court for dismiss the I.A. for compliance of
Section 17B is still in existence.
(d) That, the objection raised by the petitioner in
reply of I.A. No.4346/2016 that the resignation
letter dated 21.11.2012 was submitted before the
authority but document relating to acceptance of
resignation not filed, thus it seems that the
respondent is still working over there.
(e) That, one more affidavit also filed by the
petitioner that "eSa csjkstxkj g¡w" on 23.11.2014
thereafter the Hon'ble High Court was passed the
order for dispensing with the condition for
compliance of Section 17B of the Industrial Disputes
Act on 3.12.2014, the present affidavit is identical
and same, so have no serious validity of submission,
nothing stated about previous job and resignation of
acceptance and source of livelihood from October
2009 to till the day, so not replied objection raised
in reply of I.A. No.4346/2015"
Evidently, no fresh material are brought on record by the
employer to establish that the respondent-workman is in gainful
employment after tendering his resignation on 21.11.2014.
It was in these given fact situation the order was passed
on 14.7.2016 for compliance of provisions of Section 17-B and
for its non-compliance, the interim order-dated 24.3.2014 was
vacated by order dated 11.8.2014. Be that as it may.
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Writ Petition No.4913/2014
Section 17-B of 1947 Act provides for :
"17B. 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."
The conditions precedent for availing benefit under
Section 17-B are :
(a) there must be an award of Tribunal or Labour
Court as the case may be;
(b) the employer prefers any proceedings
challenging the said Award in High Court or before
the Supreme Court;
(c) the workman is not in gainful employment in
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Writ Petition No.4913/2014
any establishment during the pendency of
proceedings in the High Court or before the
Supreme Court, as the case may be
(d) a declaration to the effect that the workman is
not employed in any establishment during pendency
of appeal should be by affidavit filed by workman.
In the case at hand, there is no dispute that there exist an
Award of reinstatement and present writ petition is preferred
thereagainst. It is also not in dispute that an affidavit now is
filed by the workman of being unemployed since 22.11.2014 as
he has resigned from the service of M/s Prasanna Purple
Mobility Solution Private Limited, document to that effect is
brought on record along with reply filed on 11.12.2014, which is
in the following terms :
izfr]
Jheku~ eq[; egkizca/kd
izlUuk iiZy eksfcfyfV lkY;w'kUl izk;osV fy-
tokgj pkSd] Hkksiky
fo"k; %& dk;Z ls R;kx i= fn;s tkus ckor~
egksn;]
fuosnu gS fd eSa vius futh ikfjokfjd dkj.kksa ls dk;Z
djus esa vleFkZ g¡w A
vr% fuosnu gS fd eq>s vius dk;Z ls dk;ZeqDr djus
dh d`ik djsa A
izkFkhZ
¼izlUu dqekj n.MikV½
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Writ Petition No.4913/2014
Though it is contended on behalf of petitioner that the
resignation and its acceptance is not in proper format; however,
learned counsel for the petitioner has failed to establish the type
of resignation format a private concern should have. Since there
is no material on record to counter the resignation letter and its
acceptance, this Court has no option but to accept the
contention on behalf of respondent-workman that after the
acceptance of his resignation w.e.f. 21.11.2014, he is
unemployed.
Much has been said about on behalf of petitioner that the
respondent has not said about in affidavit that he is not gainfully
employed and has only stated that he is unemployed. Section
17-B uses the expression "if the workman had not been
employed in any establishment during such period". The
expression being clear in terms of requiring the workman to give
a declaration of not been employed in any establishment, the
proviso appended to Section 17-B certainly cast an obligation on
the employer to bring on record the material to establish that
the workman is gainfully employed as would disentitle him of
last wages drawn.
In Bharat Singh vs Management of New Delhi,
Tuberculosis Centre, New Delhi AIR 1986 SC 842 their
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Writ Petition No.4913/2014
Lordships were pleased to observe :
"6. Before we deal with the rival contentions, it
would be useful to read Section 17-B with which we
are concerned.
"17B. Where in any case, a Labour Court,
Tribunal or National Tribunal by its award directs
reinstatement of 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."
The three necessary ingredients for the application
of this Section are (i) 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, (iii) that the workman should not have been
employed in any establishment during such period.
...
8. It is common knowledge that even before Section 17-B was enacted, Courts were, in their discretion, awarding wages to workmen when they :: 10 ::
Writ Petition No.4913/2014felt 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 employers 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 background that the introduction of this Section has to be viewed and its effects considered.
9. The objects and reasons for enacting the Section is as follows :
"When Labour Courts pass award of reinstatement, these are often contested by an employer in the Supreme Court and High Courts. It was felt that the delay in the implementation of the award causes hardship to the workman concerned. It was, therefore, proposed to provide the payment of wages last drawn by the workman concerned, under certain conditions, from the date of the award till the case is finally decided in the Supreme Court or High Courts."
10. The objects and reasons give an insight into the background why this Section was introduced. Though objects and reasons cannot be the ultimate guide in interpretation of statutes, it often times aids in finding out what really persuaded the legislature to enact a particular provision. The objects and reasons here clearly spell out that delay in the implementation of the awards is due to the contests by the employer which consequently cause hardship to the workmen. If this is the object, then would it be in keeping with this object and consistent with the progressive social philosophy of :: 11 ::
Writ Petition No.4913/2014our laws to deny to the workmen the benefits of this Section simply because the award was passed, for example just a day before the Section came into force? In our view it would be not only defeating the rights of the workman but going against the spirit of the enactment. A rigid interpretation of this Section as is attempted by the learned counsel for the respondents would be rendering the workman worse off after the coming into force of this Section. This section has in effect only codified the rights of the workmen to get their wages which they could not get in time because of the long drawn out process caused by the methods employed by the Management. This Section, in other words, gives a mandate to the Courts to award wages if the conditions in the Section are satisfied."
In Uttaranchal Forest Department Corporation vs K.B. Singh (2005) 11 SCC 449, it has been held : -
"2. The benefit of Section 17B of the Industrial Disputes Act, 1947 by directing reinstatement in service or payment of last wages drawn in lieu thereof can be granted only in favour of such workmen who have obtained awards in their favour from the Industrial Tribunal/Labour Court and in support of their claims filed affidavits. Learned counsel for the employer states that such workmen who had directly approached by writ petitions to the High Court for seeking relief of reinstatement, cannot be granted benefit of S.17B of the Industrial Disputes Act as there was no evidence before the Tribunal or the Labour Court about their non :: 12 ::Writ Petition No.4913/2014
employment or gainful employment elsewhere after discontinuance of their services."
In view whereof, as the petitioner has failed to establish that the respondent-workman is gainfully employed after 21.11.2014 and that an affidavit is filed by the workman declaring that he is unemployed since 22.11.2014, respective interlocutory applications relating to the claim for grant of last wages and replies thereof stand disposed of with direction to the petitioner to grant wages last drawn by respondent-
workman w.e.f. 22.11.2014, subject to same the operation and effect of impugned award is stayed. Order-dated 11.8.2016 is modified to that effect.
C.C. as per rules.
(Sanjay Yadav)
vinod JUDGE