Karnataka High Court
The Managing Director, The Karnataka ... vs Mallikarjuna on 8 October, 2003
Equivalent citations: ILR2004KAR336, 2004(2)KARLJ260
Author: N. Kumar
Bench: N. Kumar
ORDER Kumar, J.
1. The petitioner has challenged in this Writ Petition an award passed by the labour Court on 6.11.2002 setting aside the order of dismissal and directing reinstatement of the respondent into service forthwith without backwages but with continuity of service. The said Writ Petition was presented on 21.6.2003. It came up before this Court on 9.7.2003 and rule was issued and interim stay of the impugned award was granted. After service of notice the respondent has filed an application under Section 17(b) of the Industrial Disputes Act for a direction to the petitioner to pay wages to the respondent from the date of award till disposal of the Writ Petition. The said application came to be filed on 29.7.2003. Thereafter the petitioner took time to file objections. Objections were not filed. When the case was listed for orders on the said application on 7.10.2003 a submission was made on behalf of the petitioner that they are unable to get information regarding the fact whether the respondent was otherwise gainfully employed and therefore they are not in a position to file any objection but submitted that they are ready to address arguments on merits. When the Court was inclined to take up the matter on merits, learned Counsel for the respondent submitted, when an application under Section 17(b) of the Industrial Disputes Act is pending unless the said application is disposed of the Court has no power or jurisdiction to take up the Writ Petition on merits and dispose of the Writ Petition on merits. To substantiate the said contention he sought for a week's time and that is how the matter is listed today.
2. Learned Counsel appearing for the petitioner in support of his contention today has relied on several judgments. The first judgment which appears to be on the point is a judgment of the Supreme Court in the case of WORKMEN OF HINDUSTAN VEGETABLE OILS CORPN. LTD. v. HINDUSTAN VEGETABLE OILS CORPN. LTD. AND ORS., 2000- II LLJ 246. What is the jurisdiction of the High Court to pass an order under Section 17(b) was the subject matter of several decisions and in that connection the learned Counsel relied on a judgment of the Division Bench of this Court in the case of NEELAIAH G.M. v. KARNATAKA STATE TOURISM DEVELOPMENT CORPN. AND ANR., 1999 LLJ 160 a judgment of the Supreme Court in the case of BHARAT SINGH v. MANAGEMENT OF NEW DELHI TUBERCULOSIS CENTRE, NEW DELHI AND ORS., a Full Bench judgment of the Madras High Court in the case of GODREJ AND BOYCEE CO. LTD. v. THE PRESIDING OFFICER, PRINCIPAL LABOUR COURT, MADRAS AND ANR., 1992 (2) LLJ 201 and the judgment of the Supreme Court in the case of SHYAM LAL v. C.H. CHARAN SINGH, HARYANA AGRICULTURAL UNIVERSITY, 2001 LLJ 23 and a judgment of the Division Bench in the case of. VISVESWARAYA IRON AND STEELS LTD. v. M. CHANDRAPPA AND ORS., 1993 (II) LLJ 198
3. In the case of M/S. VISVESWARAYA IRON AND STEEL, in M/S. GODREJ LTD. and in C.M. SARAIAH's case the question that arose for consideration was what are the ingredients to be satisfied before an order is passed under Section 17(b) of the Industrial Disputes Act. All those judgments have held that once the ingredients mentioned under Section 17(b) are satisfied the High Court has no discretion to deny the relief to which the workman is entitled to. Under the said provision, namely, when an order of reinstatement is stayed and if management fails to establish that the workman is gainfully employed the workman is entitled to last drawn wages before the order of dismissal. In so far as the said legal position is concerned, there cannot be any dispute.
4. But the question before me is, when the petitioner who has filed the Writ Petition and obtained a stay of the order of award of the Labour Court is ready and willing to address arguments on merits and the Court is ready and willing to dispose of the case on merits the pendency of application under Section 17(b) and not deciding the said application, whether court loses the jurisdiction to decide the Writ Petition on merits. It is in this connection, learned Counsel has relied on judgment in WORKMEN OF HINDUSTAN VEGETABLES's case where the Supreme Court has held that the application filed under Section 17(b) should be disposed of with great promptitude and before disposal of the Writ Petition. In the said case an application was made by workmen under Section 17(b) of Act before Division Bench of the Calcutta High Court. Learned Judges without considering the said application passed an order directing the posting of the said application alongwith the mentioned Writ Petition on merits. That order was challenged before the Supreme Court. In that context the Supreme Court held, the question of considering the application under Section 17(b) along with the Writ Petition would not arise. Application under Section 17(b) has to be disposed of with great promptitude before disposal of the Writ Petition. Therefore, in the said judgment the question whether without deciding the application under Section 17(b) whether Court has jurisdiction to decide the Writ Petition on merits was not considered. In my humble view the Supreme Court has not laid down the law holding that until and unless the application under Section 17(b) is decided the Writ Petition cannot be decided on merits. In fact, a Constitution Bench of the Supreme Court in the case of PADMASUNDRA RAO (DEAD) AND ORS. v. STATE OF TAMILNADU AND ORS. dealing with how precedents have to be understood has held under:
Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.
Therefore in the first place the Supreme Court did not lay down any law in the aforesaid judgment. Secondly, even if the entire judgment is taken as a whole what the said judgment states is, as is clear from the language employed in Section 17(b) of the Act the employer shall be liable to pay the workman during the pendency of such proceedings in the Higher Court or Supreme Court full wages last drawn by him. Therefore, the application under Section 17(b) is maintainable during the pendency of the Writ Petition before the High Court or the Supreme Court. If that proceedings is not decided expeditiously then during the pendency of the said proceedings the workman is entitled to the relief. When such a request is made by filing application directing that application to be decided along with merits is wholly improper and contrary to the language of Section 17(b). It is in that context the Supreme Court said, application under Section 17(b) has to be decided with great promptitude and before disposal of the Writ Petition.
5. In fact, Section 17(b) was introduced in the statute by Amendment Act 46 of 1982. The object for enacting the Section is, when labour Courts pass awards of reinstatement, these are often contested by an employer in the Supreme Courts and High Courts. It was felt that the delay in 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. Taking into all these objects and reasons behind the aforesaid provisions, the Supreme Court in the case of BHARAT SINGH has held as under:
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 our 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 workmen but going against the spirit of the enactment. A rigid interpretation of this Section as is attempted to 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.
6. Therefore it is clear, the whole object behind this provision is when a workmen is ordered to be reinstated, an employer who is better off, as the experience shows, challenges the said award in higher Courts and the operation and implementation of the award is stayed by higher Courts. Having regard to the pendency of the cases, it is our experience, the said matter pending in higher Courts take years for disposal. It is during that period the workman who has succeeded in the labour Court should be provided with some means of sustenance. If this object is kept in mind, this provision is enacted because of the judicial delay in disposal of the case and conduct of the management in stalling the implementation of the award. The whole object is, the award passed by the labour Court should be implemented with promptitude. If that is the object and the object is achieved by disposing of the Writ Petition itself on merits, and in the event of workman succeeding, not only the interim relief under Section 17(b) he would be entitled to the main relief and other consequential benefits which, in the award, the labour Court has granted he would be entitled to. In that view of the matter when the management is ready to address arguments on merits and when the Court is ready to hear the matter on merits it cannot be said the Court has no jurisdiction to hear the case on merits unless the application under Section 17(b) is disposed of. If it is held otherwise, there is a chance of the workman who gets last drawn wages without doing work. Is tempted to drag on the proceedings endlessly and in the event the award is set aside there is no scope for recovering the said amount. Neither the management nor the workmen should be allowed to misuse the judicial process and every attempt should be made to dispose of these matters expeditiously, so that ultimately judicial determination reaches finality resulting in industrial peace, and either party is not allowed to point an accusing finger at the judicial system for the delay in disposal of cases. In that view of the matter, I do not find any merit in the contention of the learned Counsel for the respondent.
List this matter for final hearing on 9.10.2003.