Calcutta High Court
Levcon Instruments Pvt. Ltd. And Anr. vs State Of West Bengal And Ors. on 5 February, 2002
Equivalent citations: [2002(94)FLR899], (2002)IILLJ725CAL
JUDGMENT D.P. Kundu, J.
1. This is an application under Section 17-B of the Industrial Disputes Act, 1947 which reads as follows:
"Section 17-B. 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".
2. There is no dispute that this application under Section 17-B of the Industrial Disputes Act, 1947 is maintainable and the workman is entitled to payment in accordance with the provisions contained in said Section 17-B. The only question for consideration is whether the workman is entitled to get the benefit under Section 17-B from the date of the award or from the date of initiation of the proceedings before the High Court.
3. The learned advocate for the workman argued that under said Section 17-B the workman is entitled to get payment from the date of the award whereas the learned advocate for the Company argued that the workman is entitled to get the payment in terms of said Section 17-B from the date of initiation of the proceedings before the High Court.
4. The learned advocate for the workman, in support of her argument referred to and relied upon the following decisions:
1. Paramjit Singh Ahuja v. Presiding Officer, Labour Court and Ors., 2002 FLR (92) 112;
2. Vishveswaraya Iron and Steel Ltd. v. M. Chandrappa and Anr., 1993-II-LLJ-198 (Kant-DB);
3. Ajaib Singh v. Sirhind Co-operative Marketing-cum-Processing Service Society Ltd. and Anr., ;
4. Municipal Corporation of Delhi v. Sri Ramkishan and Anr., 2001-I-LLJ-141 l(Del);
5. Dena Bank v. Ghanshyam, .
5. The learned advocate for the Company referred to and relied upon the following decisions in support of her argument.
1. Singer India Ltd. v. State of West Bengal and Ors., 1999- I-LU-1009 (Cal)
2. Bharat Petroleum Corporation Ltd. and Anr. v. Union of India and Ors., 1998-I-LLJ-1228(Cal)
3. Dena Bank v. Kiritikumar T. Patel, and
4. Nagar Panchayat, Ratanpur v. Sunil Kumar Rawat and Anr., 1999 (83) FLR 362.
6. In Paramjit Singh case (supra) single Bench of Delhi High Court held though in the aforesaid Section 17-B the words 'from the date of the award' are not found, having regard to the objects and reasons stated for inserting this provision, Court without any difficulty can come to the conclusion that the date from which full wages last drawn to be paid should be from the date of the award till the disposal of the proceedings. The relevant lines from the reported decision are set out hereunder:
"In these circumstances, the petitioner is directed to pay the wages last drawn by the applicant/workman with effect from July 1, 1995; i.e. the date of the award. Mr. Vohra, learned counsel appearing for the management submits that since the word used in Section 17-B is 'pendency', the order should be made effective from the date of filing of the writ petition and not prior to that. This very question was considered by me in the case of Municipal Corporation of Delhi v. Ramkishan and Anr. I had drawn support from a decision of Division Bench of the Karnataka High Court in Vishveswarayya Iron and Steel Ltd. v. M. Chandrappa and Anr. It had held "though in Section 17-B of the Act the words 'from the date of the award' are not found, having regard to the objects and reasons stated for inserting this provision, we can without any difficulty, come to the conclusion that the date from which full wages last drawn to be paid should be from the date of the award till disposal of the proceedings'. Where reinstatement has been granted the back wages should be payable till that date. I had granted full back wages from the date of the passing of the award. I see no reason to vary my opinion".
7. In Vishveswaraya Iron and Steel Ltd. case (supra) a Division Bench of Karnataka High Court, in paragraph 7 of the reported decision held as follows in 1993-II-LLJ-198 at 200:
"Though in Section 17-B of the Act the words 'from the date of the award' are not found, having regard to the Objects and Reasons stated for inserting this provision, we can, without any difficulty, come to the conclusion that the date from which the full wages last drawn to be paid should be from the date of the award till disposal of the proceedings.
8. In Municipal Corporation of Delhi case (supra) a single Bench of Delhi High Court held that the workman should be paid, under said Section 17-B from the date of award.
9. In Dena Bank v. Ghanshyam case (supra) Supreme Court considered the Statement of Objects and Reasons for inserting aforesaid Section 17-B and also the said Section 17-B itself and, inter alia, held as follows in 2001-III-LLJ (Suppl)-252 at 254:
"It follows that in the event of an employer not reinstating the workman and not seeking any interim relief in respect of the award directing reinstatement of the workman or in a case where the Court is not inclined to stay such award in to the workman has two options, either to initiate proceedings to enforce the award or be content with receiving the full wages last drawn by him without prejudice to the result of the proceeding preferred by the employer against the award till he is reinstated or proceedings are terminated in his favour, whichever is earlier. In Dena Bank case this Court elucidated the expression 'full wages last drawn' as follows :
"........ Parliament thought it proper to limit it to the extent of the wages which were drawn by the workman when he was in service and when his services were terminated and therefore used the words 'full wages last drawn'".
Thus it is clear that in Dena Bank v. Ghanshyam case (supra) Supreme Court did not say that payment should be made from the date of the award.
10. In Ajaib Singh case (supra) Supreme Court observed 1999-I-LLJ-1260 at p. 1265:
"The Courts admittedly interpret law and do not make laws. Personal views of the Judges presiding over the Court cannot be stretched to authorise them to interpret law in such a manner which would amount to legislation intentionally left over by the legislature".
11. In said Section 17-B the words "from the date of the award" are not found. It is true that the Statement of Objects and Reasons for inserting the said provision indicates that when Lower Courts passed awards of reinstatement, they are often contested by employers in the Supreme Court and High Courts. To mitigate the hardship that would be caused due to delay in implementation of the award it was proposed to provide for payment of the wages last drawn by the workman concerned from the date of the award till the dispute between the parties is finally decided in the High Courts or the Supreme Court. Inspite of such indication in the Statement of Objects and Reasons Legislature chose not to include the words "from the date of the award" in said Section 17-B. Legislature intentionally left over the words "from the date of the award". Unless the words "from the date of the award" are inserted into said Section 17-B, Court cannot pass an order for payment under Section 17-B from the date of the award. Following the principle laid down by Supreme Court in Ajaib Singh case (supra), I am of the view that while interpreting aforesaid Section 17-B, the words "from the date of the award" which were intentionally left over by the Legislature cannot be inserted in the said Section 17-B. The intention of the Legislature is clear and unambiguous. Though in the Statement of Objects and Reasons for inserting said Section 17-B it had been stated that it was proposed to provide for payment from the date of the award yet such proposal was not carried out by the Legislature and the words "from the date of the award" were not inserted in the said Section 17-B. If the Court by way of interpretation insert the words "from the date of the award" in Section 17-B then that shall amount to rewrite the provisions of Section 17-B by nakedly usurping the legislative power. Court is not competent to do so. For these reasons I do not agree with the view expressed by the Division Bench of Karnataka High Court in Vishveswaraya Iron and Steel Ltd. case (supra) and Delhi High Court's view in (1) Paramjit Singh Ahuja case (supra), (2) Municipal Corporation of Delhi case (supra).
12. In Singer India Ltd. case (supra), Ms. RUMA PAL, J. held that the workman is entitled to the benefit under said Section 17-B from the date of filing of the writ petition. It was held that a petition is pending before the High Court under Article 226 once it is filed.
13. In Bharat Petroleum Corporation Ltd. case (supra) it was held that the words "during such period" relate to "during the period of pendency of such proceeding in the High Court or the Supreme Court".
14. In Nagar Panchayat, Ratanpur case (supra), the Division Bench of Madhya Pradesh High Court held that the expression "pendency of such proceedings" shall commence when the petition, is filed before the High Court or Supreme Court, as the case may be. It was further held by the Division Bench of Madhya Pradesh High Court that Court can pass an order in favour of the workman from the date of pendency of such proceedings but not from the date of award.
15. In view of the discussions made hereinabove I am of the view that the workman is not entitled to get benefit under aforesaid Section 17-B from the date of the award but he is entitled to get benefit from the date of filing of the writ petition before this High Court. Nothing has been brought to the notice of this Court to show that the workman has been employed and has been receiving adequate remuneration. The workman in his affidavit clearly stated that workman has not been employed in any establishment. Under the circumstances I direct the writ petitioner to pay the workman from the date of filing of the writ petition before this High Court full wages last drawn by him inclusive of any maintenance allowance admissible to him under any rule within three weeks from the date of communication of this order. The petitioner is further directed to go on paying the workman in terms of this order during the period of pendency of the present writ proceeding before this High Court. In these terms the application under aforesaid Section 17-B being CAN No. 7071 of 1999 is disposed of. The points involved in CAN No. 7072 of 1999 being same the said application under Section 17-B is also disposed of in the same terms.
Later on February 5, 2002 The main matter came up in the list 4 weeks hence.
Let Xerox certified copies of the earlier order February 5, 2002 and this order be made available to the learned advocates appearing for the respective parties, if it is applied for.