Bombay High Court
Chief Engineer, P.W.D., Nagpur And Ors. vs P.W.D., S.C., S.T., O.B.C. Employees' ... on 22 March, 1994
Equivalent citations: [1995(70)FLR554], (1995)ILLJ1209BOM
JUDGMENT
B.U. Wahane, J
1. By this petition, the petitioners are challenging the judgment and order dated 17th September, 1993, passed by the Industrial Court, Nagpur, in three Revision (ULPN) Nos. 97, 98 and 99 of 1990, arising out of Complaint (ULP) Nos. 170 of 1987, 1151 of 1988 and 920 of 1989. The learned Industrial Court, Nagpur by an order dated 17th September 1993 declared that the action of retrenchment on the part of the respondents/petitioners is an act of unfair labour practice under Item 1(a), (b) and (d) of Schedule IV of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 (for short 'the M.R.T.U. and P.U.L.P. Act). The learned Member directed the respondents (petitioners) to reinstate in service 128 listed employees as per Exh. 46 with continuity in service and back wages from the date of retrenchment i.e., 30-1-1987.
2. Giving rise to the present petition, the facts, in nutshell, are as follows :
Undisputedly, 128 workers or employees were working with the establishment of the Public Workers Department of the Government of Maharashtra on daily wages, but they were paid monthly salary for 26 days only. These workers were employed in three divisions of the Public Works Department, viz., (1) Division No. 1, (2) Division No. II, and (3) Integrated (Medical) Division. All the workers worked for 240 days proceeding their termination on 30th January 1987. Admittedly all the 128 workers were employed after 1-4-1982.
3. The Government of Maharashtra and taken a policy decision that the employees employed by the public Workers Department after 1-4-1982, being surplus, their services should be retrenched, there being no work available for the surplus workers. However those employees who had completed five years' of service were to be retained in service. The basic purpose of retrenchment of the employees, who were employed after 1-4-1982 was to reduce the financial assistance provided to the Public Works Department by the Government of Maharashtra.
As per the directions issued by the State Government, it is stated by the learned Counsel for the petitioners that in accordance with the circulars, a seniority list was prepared and those found surplus, their services were terminated with effect from 30th January, 1987. The services of in all 336 workers came to be retrenched by giving notice, 292 workers were from Division No. 1; 8 workers were from Division No. II; and 38 workers were from Integrated (Medical) Division. According to the petitioners, notices were served upon the workers as well as retrenchment compensation was paid. Those workers who were not available to receive the notice, their notices were issued by post and they were offered to have retrenchment compensation. Admittedly, minority of the workers refused to accept the retrenchment compensation.
4. Being aggrieved by the order of retrenchment, the respondent No. 1 Union representing 134 workers, alleged to be the members of the Union, filed U.L.P. (Complaint) No. 170 of 1987 in the Labour Court, Nagpur. Similarly, another U.L.P. (Complaint) No. 1151 of 1988 was filed by the respondent No. 1 Union on behalf of 77 workers. Again the third U.L.P. (Complaint) No. 920 of 1989 was filed on behalf of 5 workers. Thus, all the three complaints covered 216 retrenched workers. However, the present petition is restricted to 128 workers.
5. It was specifically contended by Respondent No. 1 Union that the concerned workers, whose services were retrenched by the notice dated 30th January 1987, were the members of the Union. They had completed 240 days in the last proceeding year and as such were the workmen within the meaning of the provisions of Section 2(s) of the Industrial Disputes Act. According to the workers, they were on the technical posts, like carpenters, drivers, plumbers, cleaners, oilmen, helper, muster clerks, etc. The notice terminating their services was an arbitrary decision and a colourable exercise of powers, though sufficient work was available with the Government. According to the respondent No. 1 Union and the workers, the petitioners/respondents had made a show of non-availability of work, though Division No. I, Division No. II and the Integrated (Medical) Division entrusted the work to the contractors. Further it is stated that there was non-compliance of the provisions of Section 25F, G and N of the Industrial Disputes Act, 1947. Similarly, it was contended that the termination of services of the workers was clearly against the provisions of Section 33(1) of the Industrial Disputes Act as the services of the workers were retrenched during the pendency of conciliation proceedings. The service of the workers were retrenched, violating the provisions of Section 25-F and G of the Industrial Disputes Act and Rule 81 of the Industrial disputes (Bombay) Rules.
6. The learned Labour Court after considering the evidence led by the parties and the documents placed before him, dismissed all the three complaints by two separate judgments. Both the judgments were almost identical.
7. The Respondent No. 1 Union preferred Revision Nos. 97 of 1990, 98 of 1990 and 99 of 1990, before the Industrial Court, enclosing the list of workers with each of the revision petition. The petitioners had raised a legal objection regarding maintainability of the revisions. According to the petitioners, the complaints and the revisions were not maintainable as the complaints were not filed by the aggrieved workers. So also, according to the petitioners, the respondent No. 1 Union failed to prove that the names show in the lists annexed with the complaints and the revision petitions, were the members of the Union. Similarly, it was contended by the petitioners that the Secretary of the Union was not authorised by the aggrieved workers to file the complaints. The learned Member of the Industrial Court dismissed all the three revisions on the sole ground of maintainability. The observations depict in Para 18 of the judgment are as under :
"18. I would have allowed the complaints' revision had the revisions and complaints filed by the complainant maintainable. Since it was pointed out to me during the course of arguments that the complaints and also the revisions are not maintainable, I am not inclined to allow the revisions as also satisfied that he complaints and revisions are not maintainable as the complaints and revisions are not filed by competent persons :
8. Being aggrieved by the order passed by the learned member of the Industrial Court dated 2-5-1991, the respondent No. 1 Union and 77 workers in their individual capacity preferred Writ Petition No. 2039 of 1991. Another W.P. No. 1415 of 1991 was filed by 25 workers in their individual capacity. The respondent No. 1 Union is not a party to this petition. Third Writ Petition No. 2459 of 1991 was filed by 8 workers in their individual capacity and in that petition too the Respondent No. 1 Union was not a party. Learned Brother Sirpurkar, J. after hearing the learned counsel for the parties, being not satisfied with the finding arrived at by the learned Member of the Industrial Court, set aside the order dated 2-5-1991 passed by the Industrial court and remanded all the three revisions to the Industrial Court to adjudicate the same on the issues raised by the rival parties.
The learned Industrial Court, Nagpur, after hearing the learned counsel for the parties and appreciating the evidence led by the rival parties, allowed all the three revisions (ULPN Nos. 97, 98 and 99 of 1990), set aside the order passed by the Second Labour Court Nagpur in Complaint (ULP) Nos. 170 of 1987, 1151 of 1988 and 920 of 1989, declared the action of retrenchment as an act of unfair labour practice under Items 1(a), (b) and (d) of Schedule IV of the M.R.T.U. and P.U.L.P. Act, 1971, directing the respondents to reinstate in service the 128 listed employees as per Exh. 46 with continuity in service and back wages from the date of retrenchment i.e., 30-1-1987. In the instant petition, the said impugned order is challenged.
9. It is stated at the Bar by the learned counsel for the parties that at the time of admission, preliminary legal objections were raised regarding the maintainability and tenability of the instant writ petition. However, the learned Brother Sirpurkar issued rule and fixed the matter for final hearing.
10. Shri Deshpande, learned counsel for the petitioners, was heard at length on 8th, 9th, 11th, 15th and 16th March, 1994 on various issued raised in the petition. However, it pains me to mention that there was no whisper in the submissions regarding preliminary issue raised. One of the legal preliminary issue raised. One of the legal preliminary issue was raised by filing the written submissions. After hearing in extenso Shri Deshpande, the learned counsel for the petitioners, Shri Phadnis, the learned counsel for the respondent No. 1 Union, opened his lips, raising the preliminary objection regarding maintainability of the petition. According to Shri Phadnis, the petition is not maintainable because as per the contentions of the petitioner the workers who had earlier filed the writ petitions in their individual capacity were not joined as parties. The aggrieved employees/workers being retrenched are not only the necessary but proper parties. Further, it is submitted that as all the three revisions were remanded to the Industrial Court, those workers who filed the three different writ petitions in this Court, were the parties in their individual capacity. As the persons, who are bound to be prejudiced by the order passed by this court, are not impleaded as parties, on this count itself this petition deserves to be dismissed in limine.
11. In the instant petition, prayer Clause (i) reads as follows :
"(i) quash and set aside the judgment and order dated 17-9-1993 in Revision ULPN Nos. 97, 98 and 99 of 1990 passed by the Industrial Court, Nagpur, and to maintain the Court, Nagpur, and to maintain the order passed by the IInd Labour Court, Nagpur, in Complaints ULPN Nos. 170/87, 1151/88 and 920/89, dismissing the complaints filed by the respondent/Union".
It is thus clear from prayer Clause (i) of the instant petition that the order which was passed, directing the petitioners to reinstate the employees with continuity in service and back wages, vide order dated 17-9-1993, in the instant petition those employees were necessary and proper parties. It is apparent as enumerated in the preceding paras the in all the three petitions, the respondent No. 1 Union was not the party at all.
12. It needs mention that regarding maintainability of the complaints and the revisions, not being filed by individual workers, the complaints and the revisions were not tenable. Shri Deshpande, the learned counsel for the petitioners, raised the first legal point regarding maintainability of the complaints. The learned counsel took me to various provisions and tried to pursue this Court that as the complaints and the revisions thereafter were not preferred by individual member/worker, the complaints and the revisions were rightly dismissed by the learned Second Labour Court and the learned Industrial Court respectively.
In view of these submissions as also considering the three writ petitions filed by individual workers in their individual capacity, each and every worker, who was impleaded as petitioner in these writ petitions, ought to have been impleaded as the respondents. It is apparent from the perusal of the three writ petitions that the respondent No. 1 Union was and is not representing all the workers who become the victims of retrenchment.
13. Shri Phadnis, learned Counsel for the respondent No. 1 Union relied on the decision in K. B. Sharma v. Transport Commissioner, U.P. Lucknow & Anr. . In para 7, the learned Judge observed -
"Before I may take leave of the matter I may mention that the petition is also bad for failure to implead the three officials who are directly affected by the prayer asked for by the petitioner. It is on their representation that the order Annexure 10 came to be passed restoring their respective seniority and in case that order is to be quashed as asked for by the petitioner, it is only too obvious that they would be the persons most affected in the matter. In my view, the omission on the part of the petitioner to implied them is fatal to his case".
Shri Deshpande, the learned counsel for the petitioners, made an endeavour to distinquish the facts of this case and the case in hand and thereby submitted that the principles laid down are not applicable to the instant case. It is universally observed that the facts of two cases could never be identical, but the principle laid down has to be accepted and followed. If considering the facts of this Case, three writ petitions instituted by the workers in their individual capacity and the impugned order which was passed by the learned Industrial Court in favour of the individual member directing the petitioners to reinstate them with continuity in service and back wages, naturally they have a direct bearing of adjudication. Thus, they being directly affected, are necessary and proper parties.
14. Shri Phadnis further relied on the decision in Rallis India Ltd. v. F. H. Lala, reported in 1970 Mh. L.J. 216. This Court in para 2 observed that the petitioner was ventilating his own grievance. Since the union does not represent the workmen in the proceeding before this Court the writ orders passed in writ proceedings in this Court would not bind the workmen who are not parties to it. This has been elaborately discussed in para 2, which is reproduced as under :
"2. The first question is whether respondent No. 2 - Union sufficiently represents the workmen discharged during the relevant period in the present proceedings, with the result that no leave under Order 1, Rule 8 would be necessary. As far as that question is concerned, the Award of the Industrial Tribunal is not only binding on the members of the Union which has appeared before it, but also on non-members. This is clear from the provisions of Sub-section (3) of Section 18 of the Industrial disputes Act, 1947. The Union concerned may represent its members in proceedings before the Industrial Tribunal and the Award of the Tribunal may be binding even on persons who are not members of such Union, as already stated above, but in my opinion, a Union does not represent the workmen in writ proceedings in this Court, nor would orders passed in writ proceedings by this Court be binding upon the workmen if they are not parties to it".
The Court further relying on the cases of Ahmedali Abdulhusein v. Lalkaka, and of the Allahabad High Court in K. B. Sharma v. Transport Commissioner, U.P. Lucknow, held that persons directly affected by the relief prayed for in a petition under Article 226 must be impleaded.
15. Further Shri Phadnis relied on the decision in B.E.S.T. Workers' Union, Bombay v. P. B. Kerkar, reported in 1978 Mh. L.J. 452. In this case, the learned Judges of the Division Bench held that the employees who are likely to be affected by the order are necessary parties to the petition. The principle elaborated in para 9 of the judgment is as follows :
"9. .............. Admittedly the proceedings in this application under Article 227 are not governed by the provisions in the Act. The representative capacity of the Union is restricted even under Section 33 of the Act to the proceedings under the Act. That representative capacity cannot, therefore, travel beyond the stage at which the proceedings under the act stood terminated and those proceedings stood terminated by the order of the Industrial Court. Any decision on the question as to whether the order of the Industrial Court. Any decision on the question as to whether the order of the Industrial Court should be set aside or not was clearly going to affect the right of the employees to receive Rs. 75 per month. They were, therefore, entitled to show that there was no illegality in the order of the Industrial Court or that the alleged change as a result of which they were getting additional allowance of Rs. 75 was not illegal but was perfectly legal valid. They were, therefore, clearly necessary parties even to the present petition. On that ground also, the petition is liable to be rejected".
In a case in 1973 LIC 1310 M. A. V. Prasad Rao v. The Union of India, the learned Judges observed that the number of persons likely to be affected is large is no ground to dispense with their being impleaded. In Para 84, their Lordships observed as follows :
"The parties likely to be affected are necessary parties and without hearing them it would not be proper to pass any orders. Merely because in some cases the number of persons affected is large would not alter the requirement. The is a provision in the C.P.C. in Order 1, Rule 8 meet such a situation. In this case there were only three workers' Unions who were parties to the settlement. We are clear that without hearing them or at least providing and to give any decision, regarding the validity of the settlement. We therefore decline to consider the question".
15-A. Shri Deshpande, the learned counsel for the petitioners, vehemently opposed the contention of Shri Phadnis, learned counsel for respondent No. 1 Union. According to Shri Deshpande, as the complains were filed by the Union representing each member, it was not necessary to join each and every retrenched worker in the instant petition and the workers were represented before the Labour Court as also before the Industrial Court by the Respondent No. 1 Union. Under the circumstances, the question of joining or impleading the individual worker as party does not arise. The workers are estopped from taking a stand that individual members are not impleaded as parties in the writ petition. I do not agree with the submission made by Shri Deshpande, learned counsel for the petitioners, on the ground that it is the case of the petitioners that the Union was not authorised, particularly the Secretary, to file the complaints or revisions in the Labour Court and the Industrial Court respectively. Similarly, Shri Deshpande opened his argument with the submission that the complaints and revisions were not tenable as they were not filed by the individual worker. In view of the submissions made on behalf of the petitioner it was necessary to implead all the workers, who had filed three different writ petitions in this Court in their individual capacity.
16. Shri Deshpande placed reliance in the decision in M/s. Transport Corporation of India Ltd. Bombay v. State of Maharashtra & Ors. reported in LIC 507 (Bombay). In para 18. His Lordship has observed -
"18. It was urged that all the workmen who would be affected by the judgment in these 28 writ petitions have not been made parties to these writ petitions. Now all the parties that were before the Tribunal have been made parties to these writ petitions. It is true that the impugned award is a common award and that certain employees who are covered by the common award have not filed writ petitions and they are not parties to the 28 petitions that are filed here. It was observed in AIR 1963 SC 930 (sic) that benefit given of an order under the said circumstances will go only to those who have filed the appeal. That does not render the appeal proceedings as invalid. On the same footing the proceedings of these writ petition cannot be held to be invalid because other employers have not filed writ petitions. Further it is necessary to point out that notices of those writ petitions were given by the petitioners in newspapers and in the circumstances of the matter these proceedings cannot be held to be invalid."
The facts of this case and the facts of the case in hand are altogether different. In the case, cited above, in the writ petitions all the parties were joined, which were before the Tribunal. In the instant case, the workers who had filed three separate writ petitions in their individual capacity, were before the Industrial Court. However, those individual workers who were the petitioners in the writ petitions are not impleaded as respondent. Therefore, the case relied upon by Shri Deshpande is of no assistance.
16-A. From the submissions and the principles laid down by their Lordship of various Courts, discussed above, it is made clear that under the provisions of Section 21 of the M.R.T.U and P.U.L.P Act, 1971, recognised Union can represent the employees in the proceedings relating to unfair labour practice. Similarly, under section 22 of the said Act, unrecognised Unions can represent the members of their union, if authorised by the members of the Union, in matters relating to discharge, removal, retrenchment, termination of service and suspension etc., Section 28 empowers the Union to file a complaint on behalf of the employee/employees within 90 days of the occurrence of such unfair labour practice before the Court competent to deal with such complaint. It is thus clear from the above provisions that a Union of the workers concerned may represent its member/members in proceedings before the Labour Court and the Industrial Court, and the award of the Tribunal may be binding even on the persons who are not members of the Union. Thus, the representative capacity of the Union is restricted even under Section 28 to the proceedings under the M.R.T.U and P.U.L.P. Act. Admittedly, the proceedings in the instant petition are not governed by the provisions of the M.R.T.U. and P.U.L.P. Act. Thus, the representative capacity cannot, therefore, travel beyond the stage at which the proceedings under the Act stood terminated and those proceedings stood terminated by the order of the Industrial Court in the instant case on 17-9-1993. It is thus clear that a Union has not represented the workmen in writ proceedings before the High Court orders passed in writ proceedings by the High Court is not binding upon the workmen who are not parties to it. In any case any decision is taken affecting the rights of 128 employees who had filed three separate writ petitions in this Court earlier, it would certainly affect their rights and thus they are necessary parties. The persons directly affected by the relief prayed for in a writ petition under Article 226 of the Constitution must be impleaded as parties. In the instant case, though the workers, who are likely to be affected by the order of this Court not being impleaded, no orders without hearing them can be passed. Under the circumstances, the instant petition is not tenable and liable to be dismissed on this count itself.
17. Shri Phadnis, learned counsel for the respondent No. 1 Union, raised another preliminary objection regarding maintainability of the writ petition relying on the provisions of section 17B of the Industrial Disputes Act, 1947. Section 17B 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 awards 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 workmen, 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 prove 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.
According to Shri Phadnis, as the words employer shall be liable to pay such workman being incorporated in the provision, it is mandatory direction to the employer to pay the workman during the pendency of the proceedings in the High Court or the Supreme Court. The petitioners failed to comply with the mandatory directions and hence the petition deserves to be dismissed.
To counter the submission, Shri Deshpande, learned counsel for the petitioners, submitted that the provisions of section 17B of the Industrial Disputes Act are applicable to Awards and not the adjudication by the Industrial Court under the provisions of the M.R.T.U. and P.U.L.P. Act, 1971. Award is defined in section 2(b) of the Industrial Disputes Act, 1947, as follows :
"Award' means an interim or a final determination of any Industrial disputes or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under Section 10A."
It is thus clear from the definition that award is not restricted, but it includes an interim or a final determination of any industrial dispute by the Labour Court. Industrial Court or National Industrial Tribunal. It is not disputed that the provisions of Section 17-B of the Industrial Disputes Act are enacted to protect the interest of the employees. Any challenge by the management in the High Court or Supreme Court against the order passed by the Industrial Court or the National Industrial Tribunal takes much time. Thus, to prevent the harassment and to safeguard the interest of the workmen and to safeguard the interest of that the workmen and not to allow the family to starve, the beneficial provision is enacted.
18. Shri Deshpande, learned counsel for the petitioners, submitted that none of the workers has filed an application to take benefit of Section 17-B of the Industrial Disputes Act. Similarly, the respondent No. 1 Union has also not filed any application to invoke the provisions of Section 17-B of the Industrial Disputes Act.
To counter the submissions of Shri Deshpande, Shri Phadnis has brought to my notice the additional affidavit dated 4-3-1994, which has been filed at the direction of Brother Sirpurkar, J. who admitted the matter. Para 1 of the additional affidavit dated 4-3-1994 speaks as follows :
"That, in view of the oral directions of this Hon'ble Court for furnishing the information with regard to two points, namely, (1) as to whether during this period in question that is, the intervening period between the date of termination of service of the employees till this date, such employees were gainfully employed elsewhere or not? If so, to what extent? and, (2) whether the department has sufficient clear vacancies for absorption of the employees during the period in question?"
The formation of two points specify whether the employees are given benefit of Section 17-B of the Industrial Disputes Act or not. Perusal of Section 17-B, according to me, needs no filing of an application or an affidavit by an individual employee or on his behalf the Union. The provisions are mandatory, directing the employer to pay the workman/workmen during the period of pendency of the proceedings in the High Court or the Supreme Court full wages last drawn by him/them 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.
19. In the additional affidavit dated 4-3-1994 it is specifically stated that none of the employees i.e., 128 workers, were employed at any place since the date of their termination on 30-1-1987, except 76 employees out of 128 employees, who were working in Division No. 1 were employed for a month once a year during the Assembly Session at Nagpur. It is further stated that there are 211 vacancies in the M.L.A. Hostel at Nagpur and some retiring in a short period, the workers can be absorbed, in their places.
20. It needs mention that during the pendency of Writ Petition No. 2039 of 1991 filed by respondent No. 1 Union and individual employees in this Court, my learned Brother Kantharia, J., passed an order on 16th and 20th December 1991, granting some interim relief to the petitioners. Directions were issued to the respondents as follows.
"The respondents are the Public Works Department of the Maharashtra Government and finding temporary work for 65 workers for them would not be difficult. In this view of the matter, the respondent are directed to give temporary work to the workmen represented by the petitioners' Union, numbering 65, without prejudice to the rights and contentions of both sides. In other words, it is made amply clear that there will be no prejudice caused to the respondents in raising contentions whether or not the 65 workmen represented by petitioners are or are not entitled to any relief in this writ petition and the respondents are merely directed to give temporary work to the 65 workmen represented by the petitioner Union during the pendency and final disposal of this writ petition".
Lastly, the Court specified that :
"It is hereby accordingly ordered that the above order of the Court be carried out and complied with scrupulously".
The order passed by this Court on 20th December, 1991 was modified after hearing both the parties by my learned Brother Deshpande J., on 17-2-1992. The order reads as follows :
"Heard Shri Phadnis for the petitioners and Smt. Bodade, A.G.P for the State.
The order dated 16-12-1991 does not specify whom the temporary appointment should be given, and it is obviously passed with the view to avoiding possible hardship to the 65 labourers. Smt. Bodade for the State states that the State is willing to offer employment to the 65 labourers under the EGS Scheme. Shri Phadnis opposes and states that this will create further complications. I see no merit in this contention. The nature of the employment has not been specified in the order. The State is free to offer employment to the 65 labourers under E.G.S. Scheme, without prejudice to the entitlement of the petitioners in this petition."
21. In the case of Indian Explosive Ltd. v. Fourth Industrial Tribunal, W.B. & Ors. reported in 1987 I CLR 406 (Calcutta), the intention or interpretation of Section 17-B of the Industrial Disputes Act has been given. The Calcutta High Court observed as follows :
"The language of Section 17-B dies not at all support the contention of the petitioner that the section can only be applied when the challenge to the award is rejected and the award is upheld finally. To hold that the applicability of the provisions of Section 17-B is to be deferred till after the award becomes final would lead to a violent departure from the real intent of the Legislature. It is true that the Legislature is silent on the question of refund in the event of the award being set aside, but that by itself would not render the benefit to be postponed till after the final adjudication in the matter the final adjudication in the matter, the wronged workman ought to be allowed to see the fruits of the award."
In the case of Eipro International Ltd. v. Smt. K. B. Joshi & Ors. reported in 1987 I LLN 695 (Bombay), it is held by this Court :
"If Section 17-B is read in the background in which it was introduced, then a conclusion is inevitable that it is wholly reasonable and has been enacted to achieve the avowed object of protecting the employee from the hardship resulting from the unemployment. Such a provision has been made so as to enable the employees to survive during the pendency of the litigation and reap the fruits of the order of reinstatement. The wages are to be paid if certain conditions are satisfied. The section, read with proviso, in clearest terms lays down as to when workman is entitled to get the wages. Therefore, it cannot be said that the said provision is either vague or arbitrary. It operates within the specified limits and, therefore, the challenge to the said section based on Article 14 of the Constitution must fail".
Similar view has been taken in the case of Management, Hindustan Machine Tools Ltd. v. Judge, Labour Court, reported in 1991 (62) FLR 249 (Raj.). However, in this case it is observed :
"It may be mentioned that this section is a beneficial piece of legislation which has been enacted for the benefit of the workman to see that they do not suffer on account of stay of award, which has been passed in his favour by the Labour Court. The litigation is a time consuming process and the workman cannot be made to suffer for years till the writ petition filed by the employer is disposed of finally. With a view to surmount this difficulty, the provisions of Section 17-B were added to the I.D. Act with clear intention to give relief to the workman during the pendency of litigation in the High Court/Supreme Court. To bring about the balance of justice, proviso to this section has been added, which also authorises the Court not to make payment if it is satisfied that the workman has been employed and receiving adequate remuneration. If such satisfaction is not there, the order of payment should more or less follow automatically as provided in the section itself."
22. Shri Deshpande, learned Counsel for the petitioners, relied upon the case of Godrej and Boyce Manufacturing Co. Ltd., Madras v. Principle Labour-Court, Madras & Anr. reported in 1992 I CLR 454 (Madras) (F. B) In para 6 Section 17-B of the Industrial Disputes Act is reproduced. According to their Lordships, three conditions have to be complied with for the application of the provisions of Section 17-B of the Industrial Disputes Act, (1) the Labour Court directed reinstatement of the workmen.
(2) the employer preferred proceedings against the award of reinstatement in the Court, and (3) the workman had not been employed in any establishment during the pendency of the proceedings.
and the Court shall exercise its power under Article 226 of the Constitution of India to order that the employer would pay to the workman during the pendency of the proceedings in the Court, full wages last drawn by him inclusive of maintenance allowance admissible to him under any rule.
In the instant case, all the three conditions, referred to above, have been fulfilled. The Industrial Court has passed the order on 17-9-1993, directing the petitioners to reinstate the workers with continuity in service and back wages. The employers have preferred instant writ petition in this Court. The workers have filed an affidavit specifying that only the workers who were working in Division No. 1 are given temporary work of one month during the Assembly Session at Nagpur. Therefore, it is clear that except the intermittent work given to workers in Division No. 1, no other employee was engaged in any employment. Therefore, this ruling is also supporting the stand taken by the workers.
23. Writ Petition No. 2039 of 1991 was listed for final hearing on 11-2-1993. On that day, Brother Mane, J., directed the petitioners to provide the work temporarily to the workers and to file an affidavit accordingly. Again, Brother Mane, J., passed an oral order on 18-2-1993 considering the submissions of the rival parties, as follows :-
"Petitioners' (workers) request for interim relief is granted".
Inspite of the direction given by this Court, the workers are not provided the temporary work by the petitioners department and, therefore, they are deprived of their livelihood. Brother Mane, J. calculated a sum of Rs. 64 lakhs, which would have been received by the workers. Neither the workers were temporarily employed nor the amount as directed by this Court was paid to the workers. Therefore, in para 13, this Court ordered as follows :
"Accordingly, the petitioners' request for interim relief is granted in the above terms. The respondent shall absorb the petitioners on daily rated work either in P.W.D. Department or any other Department, within a period of 30 days from today or to deposit 50 percent of Rs. 64 lakhs being the amount towards their amount due to past wages on failure to provide the work to the petitioners, as stated above, within a period of two months from today."
Against the order dated 18-2-1993, the petitioners has filed Letters Patent Appeal No. 23 of 1993. However, it is stated at the Bar by Shri Deshpande, learned counsel for the petitioners, that it was neither admitted nor stay was granted. However, by an order dated 16-7-1993, all the three petitions, viz., W.P. Nos. 2039/91, 1415/91 and 2459/91, came to be disposed off, remanding the matters for fresh adjudication to the Industrial Court, Nagpur. This Court while remanding the matters gave certain directions to the petitioners department to accommodate the workers. However, a direction was given to the petitioners to accommodate such workers as could be accommodated strictly in keeping with the seniority of such workers if any vacancy arises during the pendency of the proceedings, and only such workers, who are presently concerned in three matters, shall be accommodated first.
It is thus clear from various orders passed by this Court from time to time that a direction are given to the petitioners to temporarily accommodate the workers or to make payment for their survival. However, admittedly out of 128 workers not a single worker has been absorbed even temporarily nor any subsistence allowance had been paid. Inspite of the directions given by this Court, vide order dated 18-2-1993, neither any payment is deposited in the Court nor paid to any of the workers. It is thus clear that order were passed in consonance with the provisions of Section 17-B of the Industrial Disputes Act. Thus, the petitioners - employers have not complied with the mandatory provisions of Section 17-B of the Industrial Disputes Act, thereby not providing the maintenance allowance admissible to 128 workers in the instant case. It is thus a gross negligence on the part of the petitioners not to obey the order passed by this Court. There being a non-compliance of the mandatory provision of section 17-B of the Industrial Disputes Act, the instant petition deserves to be dismissed on this count too.
24. Giving conscious thought to the legal and preliminary submissions made by Shri Phadnis, according to me, the instant writ petition is liable to be dismissed on two counts, referred to earlier, i.e., the workers not being impleaded as parties, who are directly likely to be affected, and secondly, inspite of the specific provision and the orders passed by this Court from time to time either to absorb the workers temporarily or to pay 50 percent of Rs. 64 lakhs, not being complied with and accordingly petition is dismissed with no order as to costs.
Shri Deshpande, learned counsel for the petitioners, requested to suspend the effect of the order passed by this Court. As this Court has exhaustively discussed the legal aspects, I do not find any substance in the submission of Shri Deshpande.
25. Status quo granted by an order dated 31st January, 1994 stands vacated.