Rajasthan High Court - Jaipur
Hotel Mansingh vs Judge, Industrial Tribunal And Anr. on 23 February, 2000
Equivalent citations: (2000)IILLJ1241RAJ, 2000(4)WLC184, 2000(2)WLN704
JUDGMENT J.C. Verma, J.
1. The short point involved in the present case is whether in the cases where approval as required under Section 33(2)(b) of the Industrial Disputes Act, such approval having not been granted by the appropriate Industrial Tribunal/Labour Court to the proposed punishment of removal of workman by the employer and such order of the Labour Court if so challenged in the High Court and stay is granted, but admittedly, workman concerned remains out of employment, despite the fact that the application for removing him from service having not been approved by the Labour Court, in such situation whether the employer is liable to pay to the non-petitioner workman in the terms as provided under Section 17-B of the Industrial Disputes Act.
2. In the present case, the dismissal order was passed by the petitioner on July 3, 1992 vide Annexure-2 and the application was moved to the Industrial Tribunal for approving the same as was required under Section 33(2)(b) of the Act. After going through the various aspects on the application of the approval, the Industrial Tribunal ultimately by its order, dated October 6, 1996, had rejected the application of approval. Had the application been approved, there was no difficulty for the present petitioner and the non-petitioner would have been removed from service, but non-approval of the application, definitely results in that the workman still remains on the rolls of the management till removed legally.
3. Said order of the Industrial Tribunal, dated 26 (sic) October 6, 1996 has been challenged in this Court in the present writ petition.
4. During pendency of the writ petition, application under Section 17-B dated September 24, 1999, has been moved by the non-petitioner-workman to the effect that he be paid wages last drawn as is required under Section 17-B of the Industrial Disputes Act. This application is being opposed by the writ-petitioner on the ground that Section 17-B as such is not applicable to the proceedings of the approval as the very language of Section 17-B of the Act contemplates the cases where the Labour Court in its award directs reinstatement of any workman and such employer prefers proceedings against such award in the High Court and only in that situation, the employer shall be liable to pay such workman during pendency of the proceedings in the High Court or Supreme Court, full wages last drawn by him. Section 17-B reads as under:
"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."
5. The counsel for the workman relies on Division Bench judgments of Calcutta High Court and Andhra Pradesh High Court reported in Bata India, Ltd. v. Seventh Industrial Tribunal, (1995-I-LLJ-144) (Cal-DB) and V. John v. Chief General Manager and Ors. 1995 (8) S.L.R. 304. Both the judgments are direct authorities on the proposition now being decided by this Court. Calcutta High Court in the case reported in Samer Ali v. Kesoram Industries (1988-I-LLJ-1) , has already held that in a situation when the application for approval, is rejected, the workman can maintain the application under Section 17-B of the Act But still the matter was again referred. The Division Bench of Calcutta High Court in the case of Bata India, Ltd. v. Seventh Industrial Tribunal (supra) has observed as under (1995-I-LLJ-144 at 145 to 148):
"5. A Division Bench of this Court presided over by the Hon'ble Justice Sri M. N. ROY, as His Lordship; then was, in the case of S.K. Samer Ali v. Kesoram Industries Cotton Mills, Ltd., and Anr. (supra), has already held that Section 17-B and Sections 3(2)(b) of the Industrial Disputes Act can be enforced in an application under Section 17-B of the said Act and after considering the said decision and after hearing both the parties we do not find any reason to differ from the said decision of the Division Bench.
6. We are unable to accept the submission of Sri Ginwala that as in the case of disapproval of an order of dismissal of a workman by the Tribunal under Sections 3(2)(b) of the Industrial Disputes Act the same makes the order of dismissal void ab initio but does not amount to reinstatement of the workman concerned, the provisions of Section 17-B will not be applicable in such a case as there was no award directing reinstatement of the workman concerned within the meaning of Section 17-B of the said Act.
11. In our view, a liberal interpretation is given to Section 17-B for, the purpose of giving effect to the beneficial object which it seeks to achieve, there will be no difficulty in extending the benefit of the said section even in such a case where the employer challenges an order passed by the Tribunal disapproving an order of dismissal under Section 33(2)(b) of the Industrial Disputes Act before the High Court or the Supreme Court.
12. Although in case of such disapproval by the Tribunal under Section 33(2)(b) of the Industrial Disputes Act, Tribunal does not actually direct reinstatement in service, the real effect of such order, in our view, amounts to reinstatement. 'Reinstatement' means as per 'WORDS AND PHRASES', PERMANENT EDN., Vol. 36A : 'To restore to a former state, authority or station.' 'To return to a former status.' 'To restore to a state from which one has been removed.' As per BLACK'S LAW DICTIONARY 6th Edn., 'Reinstatement' means 'To reinstall, to re-establish, to place again in a former state, condition, or office? to restore to a state or position from which the object or person had been removed.'
13. Under such circumstances, legal effect of disapproval under Section 33(2)(b) of the said Act by the Tribunal although may make the order of dismissal void ab initio, as held by the Supreme Court in the case of P.D. Sharma v. State Bank of India, AIR 1968 SC 985 : (1969-I-LLJ-513) and the workman concerned deems to continue in service the same is really by a fiction of law. Factually and effectually, the workman concerned is restored back to the position which he held before the order of dismissal only after the order of such disapproval is passed by the Tribunal under the aforesaid Section 33(2)(b) of the said Act and consequentially, as a matter of right, is entitled not only to all arrear wages and other benefits, but also is entitled to his salary month by month.
15. Even if the provision of Section 17-B of the said Act would not have been applicable in such a case, even then, in our view, the workman is entitled to all his arrear salaries and payment of further salaries month by month as a matter of right since in case of such disapproval of the order of dismissal under Section 33(2)(b) of the said Act by a Tribunal, the workman concerned deemed to continue in service and for the aforesaid purpose, it is not at all necessary for the workman to go before the Authority under the Payment of Wages Act, but such salary can be claimed as a matter of right by the workman concerned before the Court itself where the employer has challenged such order of disapproval of the Tribunal under Section 33(2)(b) of the said Act. High Court therefore, in exercise of its writ jurisdiction which is invoked by the employer by making an application under Article 226 of the Constitution challenging such order of disapproval by the Tribunal passed under Section 33(2)(b)of the Industrial Disputes Act, is fully competent to direct payment of such wages of the workman concerned both arrear as well as current whether an application has been made before the Authority for the Payment of Wages Act for recovery of such wages or not.
16. In the view taken by us above the workman is entitled to be paid all his arrear wages from the date of dismissal till date and is further entitled to be paid his wages month by month. The application is, therefore, disposed of. The writ-petitioner company Bata India, Ltd., is directed to pay the workman all his arrear wages, from the date of dismissal till date within four weeks from the date after adjustment of the amount of Rs. 20,000 already paid to the petitioner by an order, dated July 27, 1989, passed in the writ application. The writ-petitioner-company shall also go on paying his wages with effect from October, 1993 till the disposal of the writ petition."
6. Similar was the view of Division Bench of Andhra Pradesh in V. John case, (supra), which observed as under:
"9." We have only echoed this view when we have held earlier that without approval of the competent authority the contract of service of the appellant-workman is not determined. The appellant continues in service and thus, entitled to all the benefits of the service. Even before Section 17-B was introduced in the statute, Courts in their discretion awarded wages to workmen when they felt such a discretion is necessary. In case when the order imposing punishment is ab initio void, can the Court say it shall leave the workman without any emoluments and at the mercy of the employer. Under the scheme of our Constitution when rights of an employee and protections extended to the conditions of service by the statutes are guarded under Article 21 of the Constitution of India, and it is seen by the Court that the determination of the contract of service has not been reached in accordance with the prescribed procedure of law, it will be rather going against the Constitution of India if statutory protections are ignored and employee is left at the mercy of the employer.
10. For the reasons aforementioned, we are inclined to interfere with the order of the learned single Judge and to order instead that the respondent-company shall forthwith pay to the appellant herein all arrears of wages including allowances, if any, as if he is continuing in service and thus has earned all the benefits attached to the post held by him and continue paying regularly without fail. The respondent-company is directed to pay all the arrears of wages including allowances as ordered above, to the appellant herein within one month, failing which Writ Petition No. 1379 of 1995, shall stand dismissed without further reference to the Bench. It is ordered further that the respondent-company shall continue paying to the appellant herein wages each month without fail; non-payment of wages in any month shall result in the dismissal of the writ petition. Observations if any, which directly or indirectly appear to touch the merit of the writ petition, however, shall not be taken into account in deciding the writ petition finally."
7. The counsel for the petitioner relies on an order passed on Section 17-B application in Civil Writ Petition No. 3964 of 1998, decided on August 27, 1999, by me wherein without giving any reason, I had summarily dismissed the application moved under Section 17-B in the writ petition where the Labour Court had declined to approve the application under Section 33(2)(b) of the Act. I have gone through the order, in my opinion and I must confess that the order does not contain any reasons and needs re-consideration. The order under Section 17-B passed in S.B. C.W.P. No. 3964 of 1998 needs to be recalled and for this purpose, I will direct the Registry of this Court to relist the said case for passing an appropriate order.
8. The counsel for the writ-petitioner submits that provisions of Section 17-B of the Industrial Disputes Act are made to be applicable only in the case where the matter is decided by the Labour Court/Industrial Tribunal when it is referred to it as an industrial dispute under Section 2(k) or Section 2-A of the Act and for that purpose relies on the words "award" and "industrial dispute" in Section 17-B itself.
9. The High Court had been giving directions in appropriate cases to pay maintenance or certain amount of pay drawn in the cases where employer challenges the award of the Labour Court when the workman is reinstated. The Legislature ultimately had come up by way of beneficial legislation by incorporating by way of amendment under Section 17-B. The Hon'ble Apex Court in the case of P.D. Sharma v. State Bank of India (supra), as far back had categorically held that non-approval of the application by the Industrial Tribunal renders the action taken by the employer as void ab initio and the employee continues in service and his condition of service will also continue without any break as if the order in question had not been passed at all.
10. Had the order of non-approval passed by the Industrial Tribunal not been challenged, the consequence would have been that the non-petitioner workman continued to be in service as if no order has been passed as observed by the Hon'ble Supreme Court in the case of P.D. Sharma (supra). If the argument of the learned counsel for the writ-petitioner is tested when he says that Section 17-B shall only be made applicable to the cases where the Labour Court/Industrial Tribunal under a reference under Section 2(k) or Section 2-A orders reinstatement of the workman in the award and not otherwise, even though the consequent result in both the situations is the same, i.e., workman of the employer continues to be in service on either counts, i.e.:
(i) if the application is not approved; or
(ii) if in the industrial dispute, award is passed for reinstatement.
Can it be said that legislation is meant to award interim maintenance/pay as provided under Section 17-B to only one category of persons, who are reinstated by award and not to others who are deemed to be in service by fiction of law itself ? Obviously not. Section 17-B being beneficial legislation, in my opinion, in case employer challenges the award or order passed by the Industrial Tribunal or Labour Court, effect of which order is to put the workman back in service, the provisions of Section 17-B I shall be equally applicable and employer bound to comply with the conditions of Section 17-B of the Act in case such challenge is made, subject to final result of the writ petition.
11. For the aforesaid discussions and reasons, the application moved by the workman under Section 17-B is allowed with the direction that the workman non-petitioner is entitled to be paid arrears/wages from the date of pendency of writ petition, i.e., February 7, 1997, till date and is further entitled to be paid his wages month by month. The application is, therefore, disposed of. The wages shall be paid within two months from the receipt of certified copy of this order.
12. With the above observations, the application under Section 17-B, Industrial Disputes Act is allowed.