Punjab-Haryana High Court
M/S Yamuna Gases And Chemical Limited vs Satnam Singh And Others on 27 January, 2009
Author: Augustine George Masih
Bench: Augustine George Masih
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
C.M. No. 11084 of 2008 in
C.W.P. No. 10546 of 2004.
Date of Decision : January 27, 2009.
M/S Yamuna Gases and Chemical Limited. ...... Petitioner.
Versus.
Satnam Singh and others. ...... Respondents.
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH.
Present: Mr. Diwan S. Adlakha, Advocate,
for the applicant-respondent No. 1.
Mr. Vikas Singh, Advocate,
for the non applicant-petitioner.
AUGUSTINE GEORGE MASIH, J..
C.M. No. 11084 of 2008.
The present application has been preferred by the applicant- respondent No. 1 workman wherein he is praying for release of the last drawn wages under Section 17-B of the Industrial Disputes Act from the date of the award.
Briefly stated the facts are that the applicant-respondent No. 1 workman was employed as a helper with petitioner firm and his services having been terminated an industrial dispute was raised, on reference award dated 22.01.1991 was passed in favour of the workman. The said award came to be challenged by way of present writ petition which was filed on 17.07.2004, which came up for hearing on 19.07.2004 when notice of motion was issued. Thereafter, after some dates and on completion of the pleadings, this Court was pleased to admit the Writ Petition vide order dated C.W.P. No. 10546 of 2004. -2- 31.03.2005 and the operation of the impugned award was stayed till further orders.
Thereafter, an application under 17-B of the Industrial Disputes Act, 1947, was filed by applicant-respondent No. 1 workman which came up for hearing on 16.12.2005 when notice on the said application was issued. The said application was decided by this Court, vide order dated 06.07.2006 which reads as follow :-
" This is an application filed by the respondent No. 1 seeking directions to the petitioner management to pay him wages as per the provisions of Section 17-B of the Industrial Disputes Act, 1947 during the pendency of the writ petition. He has also filed an affidavit that he is not employed anywhere. The fact is controverted by the learned counsel for the petitioner who states that the respondent No. 1 is engaged in business of selling milk and, therefore, cannot be termed to be unemployed. The fact that the petitioner is eking out a living by selling milk cannot be taken against him as he has to earn something to sustain himself and his family members. Besides he cannot be termed to be employed in the sense which is intended by the statute. The petitioner is duty bound to make the payment of wages to the respondent No. 1.
Consequently, the application is allowed and the petitioner is directed to make payment of wages to the respondent No. 1 within a period of three months."
The petitioner did not comply with the order passed by this Court. Therefore, the applicant-respondent No. 1 workman filed a Contempt Petition being C.O.C.P. No. 1382 of 2006. On notice having been issued, the petitioner paid an amount of Rs. 16,500/- as back wages. The contempt petition was accordingly disposed of vide order dated 17.03.2007 which when calculated was found to be from the date of filing C.W.P. No. 10546 of 2004. -3- of the writ petition till the date of payment. The applicant-respondent No. 1 workman, therefore, filed the present application praying therein release of last pay drawn under Section 17-B of the Industrial Disputes Act from the date of award i.e. 22.01.1991.
Upon notice having been issued reply to this application has been filed wherein a stand has been taken that as per Section 17-B of the Industrial Disputes Act, the payment of last pay drawn is to be made during the pendency of the proceedings before this Court. There is no provision requiring payment of wages for the period prior to filing of the writ petition. It has been contended that the language of Section 17-B of the Industrial Disputes Act is very clear where it has been stated that where in an award the Labour Court directs the reinstatement of any workman and the employer prefers any proceedings against such award in the 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.
Counsel for the applicant-respondent No. 1 workman has put forth his submission that the provisions of the Act are by nature beneficial, and therefore, the interpretation of the provisions of this Act should be made liberally in favour of the workman. He submits that it is a case where an award was passed in favour of the workman on 22.01.1991 and the challenge to the said award has been made in July, 2004. For more than thirteen and half years the award was in force which was not challenged by the petitioner. Proceedings for execution of the said award was being undertaken by the workman and when orders in favour of the applicant- C.W.P. No. 10546 of 2004. -4- respondent No. 1 workman was passed, the petitioner has preferred the present writ petition. There is unexplained and inordinate delay on the part of non applicant-petitioner challenging the award of the Labour Court. If the interpretation which has been put forth by the non applicant-petitioner is accepted that the benefit of Section 17-B of the Industrial Disputes Act is to be restricted from the date of filing of the writ petition that would be against the spirit of the Act and would be granting a premier to the employer who can very conveniently not challenge the award and when the workman proceeds further with the enforcement of the award and an order in his favour was passed by the Labour Court, the petitioner prefers a writ petition in the High Court where he can conveniently say that since proceedings have been preferred by the employer in the High Court, the workman would be entitled to payment under Section 17-B of the Industrial Disputes Act from the date he has preferred the writ petition. He submits that Section 17-B of the Industrial Disputes Act was introduced by amendment which came into effect from 21.08.1984. The objects and reasons for inserting the said provision was to mitigate the hardship that would be caused due to delay in implementation of the award. The Legislature was well aware of the difficulties which a workman would face in case the award is challenged before the High Court or the Supreme Court. Introduction of Section 17-B of the Industrial Disputes Act was primarily in the nature of giving maintenance allowance as the words used thereunder is full wages last drawn by the workman, and therefore, the intention of the Legislature was to provide payment of wages last drawn by the workman concerned from the date of the award till the dispute between the parties is finally decided by the High Court or the Supreme Court. He C.W.P. No. 10546 of 2004. -5- relies upon the Judgment passed by Hon'ble the Supreme Court in the case of Regional Authority, Dena Bank versus Ghanshyam, A.I.R. 2001 S.C. 2270. He further relies upon two Division Bench Judgments of the Delhi High Court in the case of Indira Perfumery Company Versus Presiding Officer and others, 2004(III) S.C.T. 66 and Ashok Hotel Versus Government of N.C.T. of Delhi and others, 2005(4) S.C.T. 807. He relies upon order dated 22.03.2005 of this Court in case of Punjab National Bank Versus Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Chandigarh, in C.M. No. 13776 of 2004 in C.W.P.No. 7748 of 2002. On the basis of these, he contends that the applicant-respondent No. 1 workman is entitled to the benefit of last pay drawn as per Section 17-B of the Industrial Disputes Act from the date of award.
On the other hand, counsel for the non applicant-petitioner has submitted that the language of Section 17-B of the Industrial Disputes Act, 1947, is itself very clear wherein it provides that Section 17-B of the Industrial Disputes Act would apply during the pendency of any proceedings in the High Courts or the Supreme Court and that too in cases of award passed by the Labour Court directing reinstatement of any workman. Since section comes into operation during any proceedings which are preferred against an award wherein reinstatement of the workman has been ordered and the section further provides that the employer shall be liable to pay such workman during the period of pendency of such proceedings in the High Courts or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any Rule, there can be no ambiguity in this regard C.W.P. No. 10546 of 2004. -6- that the workman would be entitled to its benefits not before the date of filing the writ petition. Had there been the intention of the Legislature to provide benefit of Section 17-B of the Industrial Disputes Act from the date of the award as provided under Section 17-B, it could have clearly mentioned the same. He submits that in view of this, applicant-respondent No. 1 workman is only entitled to the benefit of Section 17-B from the date of filing of the writ petition and not for the period prior to that. He relies upon the Judgment of this Court in case of M/S Sudershan Finance Corporation Versus The Presiding Officer, Labour Court etc., 1992 (2) Current Law Journal 336, Division Bench Judgment of the Bombay High Court in the case of Ramjee Jaisingh and Company Versus R.K. Meshram, 1997 (3) L.L.J. (Supp.) 737, Judgment of Calcutta High Court in the case of Singer India Limited and others Versus State of West Bengal and others, 1999(1) L.L.J. 1009, Division Bench Judgment of Rajasthan High Court (Jodhpur Bench) in the case of Ram Singh and another Versus State of Rajasthan and others 2005 (4) S.L.R. 335, and the order of Hon'ble the Supreme Court in the case of Uttaranchal Forest Development Corporation and another Versus K.B. Singh and others, 2005 (11) S.C.C. 449.
Upon hearing the respective submissions put forth by counsel for the parties, I am of the considered opinion that the Judgment of Hon'ble the Supreme Court in the case of Regional Authority, Dena Bank Versus Ghanshyam, A.I.R. 2001 S.C. 2270, would be an answer to the submissions put forth by counsel for the parties. The relevant extract of the said Judgment is reproduced herein below :-
C.W.P. No. 10546 of 2004. -7-
"6. In a case where a workman is retrenched the relationship of master and servant comes to an end so thereafter the workman is not entitled to receive any emoluments from his employer. This principle is not disturbed by the provision of the Act. However, the Act provides, inter alia, a machinery for a workman to raise an industrial dispute in regard to validity of his retrenchment which will be adjudicated by Industrial Tribunal/Labour Court on reference under Section 10 of the Act. If a Tribunal/Labour Court holds the termination to be illegal, Section 11-A of the Act empower it to set aside such order of discharge or dismissal, and direct reinstatement of the workman on terms and conditions as it thinks fit and to give such relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. When the award passed by the Labour Court is challenged in the High Court or the Supreme Court, the Court may, having regard to the facts and circumstances of the case, stay the award or pass such other interim order as it may deem fit.
7. Section 17-B which is inserted in the Act by the Industrial Disputes (Amendment) Act, 1982, reads as follows :-
"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 C.W.P. No. 10546 of 2004. -8- payable under this Section for such period or part, as the case may be."
8. Section 17-B provides that where the employer prefers any proceeding against an award directing reinstatement of any workman, 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. The proviso says that if the High Court or the Supreme Court is satisfied that the workman had been employed and had been receiving adequate remuneration during such period or part thereof, the Court shall order that no wages shall be payable under that Section for such period or part, as the case may be.
9. The Statement of Objects and Reasons for inserting the said provision indicates that when Labour Courts pass 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 wage 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. 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 toto 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 proceedings preferred by the employer against the award till he is reinstated or proceedings are terminated in his favour, whichever is earlier. C.W.P. No. 10546 of 2004. -9- In Dena Bank's case (supra), this Court elucidated the expression "full wages last drawn" as follows :-
" The 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".
10. It may be noticed that Section 17-B of the Act does not preclude the High Courts or this Court under Articles 226 and 136 of the Constitution respectively from passing appropriate interlocutory orders, having regard to the facts and circumstances of the case, in the interests of justice. [Dena Bank's case (supra)]. The High Court or this Court may, while entertaining employer's challenge to the award, in its discretion, in appropriate cases, stay the operation of the award in its entirety or in regard to back wages only or in regard to reinstatement without interfering with payment of back wages or on payment of wages in future irrespective of the result of the proceedings before it etc. and / or impose such conditions as to the payment of the salary as on the date of the order or a part of the back wages and its withdrawal by the workman as it may deem fit in the interest of justice. The court may, depending on the facts of a case, direct payment of full wages last drawn under Section 17-B of the Act only by the employer to the workman. The question whether a workman is entitled to the full wages last drawn or full salary which he would be entitled to in the event of reinstatement while the award is under challenge in the High Courts or this Court depends upon the terms of the order passed by the Court, which has to be determined on interpretation of the order granting relief.
11. xxx xxx xxx xxx xxx
12. We have mentioned above that the import of Section 17-B admits of no doubt that the Parliament intended that the workman should get the last drawn wages from the date of the award till the challenge to the award is finally decided which C.W.P. No. 10546 of 2004. -10- is in accord with the Statement of the objects and reasons of the Industrial Disputes (Amendment) Act, 1982 by which Section 17-B was inserted in the Act. We have also pointed out above that Section 17-B does not preclude the High Courts or this Court from granting better benefits - more just and equitable on the facts of a case - than contemplated by that provision to a workman. By interim order the High Court did not grant relief in terms of Section 17-B, may, there is no reference to that section in the orders of the High Court, therefore, in this case the question of payment of "full wages last drawn" to the respondent does not arise. In the light of the above discussion the power of the High Court to pass the impugned order cannot but be upheld so the respondent is entitled to his salary in terms of said order.
13. It must, however, be pointed out that while passing an interlocutory order the interests of the employer should not be lost sight of. Even though the amount paid by the employer under Section 17-B to the workman cannot be directed to be refunded in the event he loses the case in the writ petition, [See : Dena Bank's case (supra)] any amount over and above the sum payable under the said provision, has to be refunded by him. It will, therefore, be in the interests of justice to ensure, if the facts of the case so justify, that payment of any amounts over and above the amount payable under Section 17-B to him, is ordered to be paid on such terms and conditions as would enable the employer to recover the same."
The reference of an order of Hon'ble the Supreme Court in the case of Dena Bank Versus Kirti Kumar T. Patel, A.I.R. 1998 S.C. 511, has been made in the above Judgment. In para 22, Hon'ble the Supreme Court in this Judgment with regard to powers of Hon'ble the Supreme Court C.W.P. No. 10546 of 2004. -11- under Article 136 and that of the High Court under Article 226 of the Constitution of India stated which reads as follows :-
"22. As regards the powers of the High Court and the Supreme Court under Articles 226 and 136 of the Constitution it may be stated that Section 17-B, by conferring a right on the workman to be paid the amount of full wages last drawn by him during the pendency of the proceedings involving challenge to the award of the Labour Court, Industrial Tribunal or National Tribunal in the High Court or the Supreme Court which amount is not refundable or recoverable in the event of the award being set aside, does not in any way preclude the High Court or the Supreme Court to pass a order directing payment of a high amount to the workman if such higher amount is considered necessary in the interest of justice. Such a direction would be dehors the provisions contained in Section 17-B and while giving the direction the Court may also give directions regarding refund or recovery of the excess amount in the event of the award being set aside. But we are unable to agree with the view of the Bombay High Court in Elpro International Ltd. (1987 Lab I.C. 1468) (supra) that in exercise of the power under Articles 226 and 136 of the Constitution an order can be passed denying the workman the benefit granted under Section 17-B. The conferment of such a right under Section 17-B cannot be regarded as a restriction on the powers of the High Court or the Supreme Court under Articles 226 and 136 of the Constitution.
The position which emerges, therefore, is that it is for the High Court to pass an appropriate order depending upon the facts and circumstances of that particular case. On going through the award, if the High Court is satisfied and is of the opinion that the benefit is to be given from the date of award, the Court is not precluded from passing such order, however, as held by Hon'ble the Supreme Court in the case of Dena Bank C.W.P. No. 10546 of 2004. -12- Versus Kirti Kumar T. Patel (supra), the High Court while exercising power under Article 226 of the Constitution of India, cannot pass an order denying the workman the benefit granted under Section 17-B of the Industrial Disputes Act. The discretion, thus, is of the High Court depending upon the facts and circumstances of the case to pass appropriate orders whether the benefit has to be given from the date of award or from the date of filing of the writ petition by the employer. The Apex Court has held that the interests of both the parties are required to be considered and balanced.
In the case of Regional Authority, Dena Bank Versus Ghanshyam (supra), Hon'ble the Supreme Court while referring to the intention of the Parliament in introducing Section 17-B in the Act has stated that the workman would get the last pay drawn from the date of award till the challenge of the award is finally decided just in accordance with the statement of objections and reasons of the Industrial Disputes (Amendment) Act, 1982.
Keeping in view the aforesaid two judgments of Hon'ble the Supreme Court, I am of the opinion that Section 17-B has been inserted to balance the equities between the employer and the employee and deals with a situation where the award of the nature mentioned therein has been challenged but does not specify as to from which date the benefit thereof has to be given leaving it open to the such Court where the proceedings have been preferred. Where the High Court has passed an order under Section 17-B without specifying as to from which date provisions of Section 17-B have to be complied with, it would relate back to the date of award. The inevitable conclusion, therefore, would be that unless specified C.W.P. No. 10546 of 2004. -13- by the High Court in its order with regard to the date/period from which the benefit under Section 17-B has to be given it would invariably relate back to and would mean from the date of the award.
The Judgments relied upon by counsel for the applicant- respondent No. 1 workman i.e. in the case of M/S Sudershan Finance Corporation (supra), Ramjee Jaisingh and Company Versus R.K. Meshram (supra), Singer India Limited and others (supra), are all Judgments which have been passed by the High Court before the Judgment of Hon'ble the Supreme Court came in the case of Regional Authority, Dena Bank Versus Ghanshyam (supra). In the case of Ram Singh and another Versus State of Rajasthan (supra), Rajasthan High Court, the Judgment of Hon'ble the Supreme Court in the case of Regional Authority, Dena Bank Versus Ghanshyam (supra), was not brought to the notice of the Court, and therefore, cannot be said to be laying down the correct law. The reference to the counsel for the non applicant-petitioner in Uttaranchal Forest Development Corporation and another Versus K.B. Singh and others (supra), where Hon'ble the Supreme Court has said that the workmen were entitled to the last drawn wages from the respective dates of affidavits filed by each of them in compliance of Section 17-B of the Industrial Disputes Act was in exercise of its power under Article 136 of the Constitution in the peculiar facts and circumstances of that case. The question of the date from which the workman would be entitled was not in question. The issue before the Court was whether employees who had approached the High Court directly under Article 226 of the Constitution of India without having an award in their favour of the Labour Court would be entitled to the benefit under Section 17-B of the Industrial Disputes Act C.W.P. No. 10546 of 2004. -14- or not. Hon'ble the Supreme Court has held therein that benefit under Section 17-B is available only to workmen in whose favour there are awards of retrenchment and who have filed affidavits of their not having gainfully employed during the period of discontinuance from service. It would not be out of way to mention here that the Judgment of Hon'ble the Supreme Court in the case of Regional Authority, Dena Bank Verus Ghanshyam (supra), was not brought to the notice of Hon'ble the Supreme Court.
In view of the above, the submissions put forth by counsel for the non applicant-petitioner cannot be accepted that the benefit under Section 17-B is available to the workman only from the date of filing of the writ petition in the High Court and not prior thereto.
Now, reverting to the facts of the present case, as is apparent the award under challenge in this writ petition is dated 22.01.1991 (Annexure-P-1) which has been challenged in this Court on 01.07.2004. The Labour Court on an application moved by the applicant-respondent No. 1 workman under Section 33 C(2) of the Industrial Disputes Act, 1947, passed an order dated 16.01.2002 (Annexure-P-3). Thereafter, an application was moved as to who would implement the award and to fasten the liability of the management which order was decided against the petitioner on 09.02.2004. It is at this stage that the writ petition was preferred by the non applicant-petitioner challenging the award dated 22.01.1991. The applicant-respondent No. 1 workman cannot be penalised for the delay on the part of the management challenging the award passed in his favour. It cannot be disputed that the award became enforceable from the date of publication of the same. The non applicant-petitioner at C.W.P. No. 10546 of 2004. -15- that stage could have challenged the award. They preferred to keep silent. They contested the application filed by the non applicant-respondent No. 1 workman under Section 33 C(2) of the Industrial Disputes Act which ended up in favour of the applicant-respondent No. 1 workman holding him entitled to Rs. 82,700/- on account of back wages from 05.05.1986 to 31.05.1994 and also holding the applicant-respondent No. 1 workman entitled to interest @ 12% from the date of the order i.e. 16.01.2002, till payment. Still further the non applicant-petitioner contested their liability leading to an order against them on 09.02.2004. It is then only that the present writ petition was filed.
In the light of the above factual position, it would be just and equitable that applicant-respondent No. 1 workman be granted benefit of Section 17-B from the date of award i.e. 22.01.1991. The non applicant- petitioner is directed to make the payment of full wages last drawn by the applicant-respondent No. 1 workman as per the provisions of Section 17-B of the Industrial Disputes Act from the date of award i.e. 22.01.1991.
C.M. stands disposed of.
(AUGUSTINE GEORGE MASIH) JUDGE January 27,2009.
sjks.