Calcutta High Court (Appellete Side)
Eastern Coalfields Limited vs Lachman Bhuiya & Ors on 13 January, 2021
Author: Abhijit Gangopadhyay
Bench: Abhijit Gangopadhyay
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
HON'BLE MR. JUSTICE ABHIJIT GANGOPADHYAY
WPA 456 of 2014
Eastern Coalfields Limited
-vs-
Lachman Bhuiya & Ors.
with
CAN 1 of 2015
(Old CAN 11747 of 2015)
For the petitioner : Mr. Sudhakar Prasad,
Mr. Pradipta Bose.
For the Respondent no. 1 : Mr. Rananeesh Guha Thakurta,
Mr. Balaram Patra.
Heard on : 13.01.2021 Judgment on : 13.01.2021
In connection with the writ application, the dismissed workman, in whose favour an award has been passed for reinstatement and full back-wages, has filed one application being CAN 1 of 2015 (Old CAN 11747 of 2015) the application, in short, for paying relief in terms of Section 17B of the Industrial Disputes Act, 1947, (said Act, hereafter).
2The application is taken up first before taking up the writ application.
Section 17B of the said Act is as follows:
"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".
From paragraph 9 of the award which has been annexed to the writ application it is found that the order of dismissal passed by the management was set aside and the management was directed to reinstate the workman Lachman Bhuiya from the date of dismissal dated 18/20.05.1999 with stoppage of two increments withholding 50 per cent. back-wages.
Referring to Section 17B of the said Act the applicant/ workman submits that the precondition for getting full wages pending proceedings in higher courts, as has been laid down in the said Section, has been fulfilled in his case as there is an award of reinstatement. He further clarifies that the withholding of 50 per 3 cent. back-wages has no effect on Section 17B application as it relates to back-wages; and not to the current wages after award.
The employer, Eastern Coalfields Limited, has challenged the award dated 17th April, 2013 passed by the Industrial Tribunal- cum-Labour Court, Asansol by filing a writ application being WPA 456 of 2014.
To put it simply, Section 17B of the said Act, 1947 lays down that if any proceeding is filed in a High Court or the Supreme Court by the employer against the award of reinstatement of the workman passed by the Tribunal or Labour Court, during the period of pendency of the proceeding in the High Court or the Supreme Court, the employer shall be liable to pay full wages last drawn by the workman. Proviso of that Section lays down the effect of non- reinstated workman‟s employment elsewhere and his earning adequate remuneration therefrom during this pendency.
Here the writ application was filed on 08.01.2014 challenging the award dated 17.04.2013 which is pending till date.
The workman prays for full wages from the date of the award. The employer opposed saying, „Nay, from the date of filing‟.
In support of the submission that the last drawn full wages are to be paid from date of the award, the learned advocate for the workman has relied upon one Division Bench judgment of the High Court of Delhi reported in 2004-II-LLJ 413 and a Division Bench judgment of this Court reported in 2006-I-LLJ 667.
Mr. Majumder has relied upon one judgement in support of his contention that the wages are to be paid not from the date of the award but from the date of the filing of the application i.e. from the date of initiation of proceeding. In support of his contention he has relied upon a judgement of Division Bench of Kerala High Court reported in 2007(112) FLR 189.
Section 17B says that the employer shall be liable to pay such workman "during the period of pendency" of such proceedings. In 4 my view, this "period of pendency" includes the period from the date of the award till the date of filing of the petition initiating the proceeding as because as soon as the award is passed, the workman is entitled to get wages at the rate he was getting during his employment. It cannot be the intention of the legislature that if a proceeding is filed by the employer in High Court or the Supreme Court against the award after a long time from the date of award, the workman should remain deprived from his last drawn full wages as Section 17B of the said Act being a social beneficial provision should not be given a literal meaning to "see the skin and miss the soul" as said by the Supreme Court in Chairman, Board of Mining etc. -v- Ramjee reported in AIR 1977 SC 965. In Organo Chemical matter reported in AIR 1979 SC 1803 the Supreme Court held "bare mechanical interpretation of words and application of legislative intent devoid of concept or purpose will reduce most of the remedial and beneficent legislation to futility."
Delayed filing of proceeding in the High Court or the Supreme Court by the employer will unjustly deny the workman from getting the wages in the delayed period.
I have no hesitation to call such filing after making a delay, a mischief. The mischief is required to be suppressed and for suppression of the mischief this particular expression "period of pendency" should be understood by giving a liberal construction which preserves the benefit (not destroying it) that is given by Section 17B of the said Act. If such a liberal interpretation to the said expression is not given a workman due to the mischief as indicated above will suffer but if the expression in the social beneficial provision is liberally constructed a workman will be benefitted despite the mischief, if occurs.
Here a question may arise as to why the workman took no steps for execution of the award as soon as it is passed? The replies to the question are many. Is it reasonable to expect that the workman after fighting for justice for years together (considering 5 the speed of justice delivery system of our country) and after getting it in the form of a paper declaration, not in real terms, will approach the adjudicatory system for execution, when he is without money for years together for not getting wages, which is the fuel for fighting a legal battle? This question can definitely be a legal homily on which brilliant lectures can be given in colloquia and erudite articles also can be written but such expectation from a jobless workman in the context of the condition of the working class of our country will remain completely estranged from the practical situation prevailing in our country so far as the plight of dismissed workers are concerned.
In fact while discussing the true meaning and scope of Section 17B, Supreme Court in Dena Bank -v- Ghanshyam reported in (2001) 5 SCC 169 held as follows:
"We have mentioned above that the import of Section 17- B admits of no doubt that 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 is in accord with the Statement of 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".
(emphasis mine).
An employer may cause delay in initiating the proceeding in High court and in the Supreme Court and can explain the delay, if questioned. But such delay may destroy the workman and also his family. In fact in this particular case the award was passed on 17.04.2013 and the writ application has been filed on 08.01.2014 i.e. after more than 8 (eight) months from the date of the award.
6Here the mischief has been caused. I have already observed that such mischief is required to be suppressed. I also hold that "period of pendency" includes, for reasons given above, the period from the date of award till the date of preferring the proceeding in a High Court or the Supreme Court.
The workman was dismissed on 18.05. 1999. He got the award after nearly 14 years in April 2013.
The workman in paragraph 11 of his application praying for relief under Section 17B of the said Act has stated as follows:
"Your applicant states that your applicant and his family members are facing starvation for want of money. Your applicant has not doing any job and unemployed till today". (Sic.) This statement has been affirmed on 31.08.2015 as a statement true to his knowledge. This statement is accepted by this court as no objection has been raised and/or placed on record disputing this statement. Thus the case of the workman is not hit by the proviso of Section 17B.
Based upon the discussion made above I hold that the workman is entitled to get relief under Section 17B of the aforesaid Act from the date of the award. Payment should be made to him in the following manner.
The arrear wages at the rate of full wages last drawn by him from the date of award (i.e. from 17.04.2013) till 28th February, 2021 shall be payed to the workman by 31st March, 2021, and the last drawn wages from March 2021 and month by month thereafter is to be paid by the employer within 7 (Seven) days from the completion of the month till the proceeding is pending in this Court.
The award was passed in 2013 and today we are in 2021. For last eight years the workman, being the respondent no. 1 herein, has not got his wages despite having an order of reinstatement. Though there is an order of stay of the award dated 17.04.2013 passed by this Court by an order dated 17.04.2014, I hold that the award of reinstatement has not been obliterated by the order of 7 stay and therefore the order of stay does not create any impediment to get relief under Section 17B of the aforesaid Act by the workman.
In the writ application affidavits were not called for when the matter was moved on 17th April, 2014 and in compliance with the direction given by the court on that date a Paper Book has been filed by the writ petitioner/employer.
Learned advocate for the respondent no. 1 submits that all the papers required in this matter has not been included in the Paper Book as was directed by this Court on 17.04.2014 which has not been denied by the petitioner.
In such circumstances I direct the concerned Tribunal-Cum- Labour Court, Asansol, which passed the award, to send all records in respect of this particular case, being Reference No. 18 of 2004 within a period of three months from date of communication of this order by the parties. On arrival of records the department will immediately serve notice of the arrival of record by 2 weeks thereafter on the parties.
Both the petitioner and respondent no. 1 are directed to serve a copy of this order immediately upon the Registrar or the appropriate authority, as the case may be, of the Tribunal-Cum- Labour Court, Asansol so that the order of transmitting the record in this matter is complied with.
The parties are at liberty to mention the matter after four months from date for inclusion of the matter in the list, for hearing.
(Abhijit Gangopadhyay, J)