Rajasthan High Court - Jaipur
Secretary, Department Of Canteen ... vs Krishna Kumar Saxena on 12 October, 2000
Equivalent citations: [2001(91)FLR352], (2001)ILLJ896RAJ, 2001(1)WLC169
JUDGMENT Arun Madan, J.
1. This special appeal is directed against the order dated July 28, 2000 passed by the learned single Judge allowing an application filed by Krishna Kumar Saxena (respondent No. 1) under Section 17-B of the Industrial Disputes Act, 1947, during the pendency of S.B. Civil Writ Petition No. 2661/1996, wherein the petitioner has challenged the Award dated September 26, 1995 (Annexure 5) of the Central Industrial Tribunal, Jaipur holding that 'Canteen' is an 'industry' thereby removal of the respondent No. 1 was retrenchment and violative of Section 25-F and therefore holding the respondent entitled to full back wages from January 2, 1984 to June 1991 alongwith reinstatement in service but for period from July, 1991 onwards the matter was left open for adjudication under Section 33-C(2) of the Act, if applied for by the respondent No. 1. The writ petition was admitted on September 4, 1996.
2. We have heard the learned counsel for the appellant and perused the impugned order of the learned single Judge, who allowed, respondent No. 1's application under Section 17-B of the Act and directed the petitioner to make the payment of salary to respondent No. 1 at the rate he was drawing the same when he was removed from service. The learned single.
Judge also directed that the payment of salary be made on or before 10th of each month during the pendency of the writ petition, and the arrears i.e. from June 1, 1996 onwards be also paid within thirty days from the date of receipt of certified copy of the order. In this view of the matter the challenge to the impugned order of the learned single Judge is limited to the consideration as to the scope of Section 17-B of the Act.
3. However, Mr. Mohd. Rafiq learned counsel for the appellant Committee went on challenging the validity of the Award of the Industrial Tribunal against which writ petition is pending adjudication for final decision. Mr. Rafiq vehemently contended that the Canteen in which the respondent employee is purported to have been discharging his duties prior to his removal from service was in fact a departmental canteen and therefore was governed by specific provisions contained in statutory rules namely Departmental Canteen Employees (Recruitment and Conditions of Service) Rules, 1980 (for brevity 'Canteen 'Rules') according to which appointment could at first instance be made on probation basis for six months within which services of the respondent No. 1 were terminated and therefore, once the Canteen Rules are applied, to the respondent employee then the Industrial Disputes Act, 1947 (for short 'the Act') cannot be made applicable.
4. A bare reading of the provision of Section 17-B of the Act will show that in a case where an award directing reinstatement of the workman if challenged by the employer, 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. Section 17-B speaks of the liability of the employer during the pendency of the proceeding in the High Court or the Supreme Court. The affidavit stating that the workman had not been employed during the period of pendency of the proceeding in the High Court or the Supreme Court has to be filed in the High Court or the Supreme Court as the case may be. The purpose of being required to file such an affidavit is to enable the High Court to make an order of payment of full wages last drawn by the employee during the pendency of the proceeding in the High Court.
5. It would be extremely hard and contrary to the spirit of Section 17-B to force an employee to seek remedy elsewhere separately to recover wages permitted to be claimed under Section 17-B of the Act by an application under Section 33-C(2) of the Act. Section 17-B has in effect only codified the rights of the employees to get their wages which are protracted because of long drawn out process caused by the employers by dragging their employees in endless litigation with preliminary objections and other technical pleas to tire them out.
6. It is trite law that Section 17-B of the Act has been enacted to achieve the avowed object of protecting the employee from the hardship resultant from the unemployment and further to enable the employee to survive during the pendency of the litigation and reap the fruits of the order of reinstatement. Section 17-B lays down as to when employee is entitled to get the wages. It is true that no provision is made as to what will happen to the amount paid Under Section 17-B if ultimately the employer succeeds in the litigation. As held by the Apex Court in Bharat Singh v. New Delhi TB Centre, AIR 1986 SC 842 : 1986 (2) SCC 614 : 1986-II-LLJ-217, followed by Division Bench of the Bombay High Court in Elpro International Ltd. v. K.B. Joshi 1987-II-LLJ-210, absence of such a provision will not however, make the section either vague or arbitrary. Thus, whatever paid under Section 17-B is in the nature of sustenance allowance, which would not be refundable or recoverable from the workman even if the impugned award is set-aside by this Court or the Supreme Court, as is evident from the expression "inclusive of any maintenance allowance admissible to him under any rule", which is indicative of legislative intent. In our view Section 17-B operates within a limited sphere and subject to the conditions thereunder. Thus, ingredients for application of Section 17-B are: (i) the Labour Court/Indus trial Tribunal should have directed reinstatement of the employee, (ii) the employer should have preferred proceedings against such award in the High Court or in the Supreme Court, and (iii) the employee/workman should not have been employed in any establishment during such: period. Though Section 17-B guarantees to the employee the payment of wages by the employer pending the proceedings before the High Court or the Supreme Court, but it imposes obligation upon him to file his affidavit before the Court stating as to his non employment in any establishment pending the proceeding. Similarly it also absolves the employer of his obligation to pay such wages, if he is able to satisiy the Court that the employee had been otherwise employed receiving adequate remuneration.
7. However, in our considered view, Section 17-B nowhere lays down that even if, the impugned award is either without jurisdiction or is otherwise a nullity or grossly erroneous or perverse, the High Court or the Supreme Court is debarred from exercising its powers under Articles 226 and 136 of the Constitution. That being so, in Bharat Singh's case (supra) the Apex Court held that the powers of the High Court and the Supreme Court under aforesaid Articles are paramount and Section 17-B does not interfere with nor restricts the said constitutional powers.
8. Thus viewed from aforesaid angle, if Section 17-B is read in the background in which it has been introduced, so also the dictum of I law laid down by the Apex Court in aforecited cases, then a conclusion is inevitable that the power of the High Court or the Supreme Court to grant reliefs being interim, is merely regulated by the conditions laid down by Section 17-B, and that since the amount paid under Section 17-B is not refundable or recoverable in the event of the impugned award being set-aside, it would result in the employer being liable to pay wages and to give effect the award during the pendency of proceedings challenging the award before High Court or the Supreme Court without his being able to recover the said amount in the event of the award being set-aside, and we cannot construe the provisions contained in Section 17-B to cast such a burden on the employer. The object underlying the enacting of provisions on Section 17-B is to give interim relief to the employee with a view to relieve the hardship which would be caused to him on account of delay in implementation of the award as a result of the pendency of the proceedings in the High Court or the Supreme Court.
9. In the case at hand, the Registry of this Court has pointed out an objection that the impugned order granting interim relief under Section 17-B of the Act during the pendency of writ petition is interim and interlocutory because the challenge to the impugned Award of the Labour Court directing reinstatement of the employee (respondent) with full back wages is pending adjudication before the learned single Judge in the pending writ petition and, so interim order Under Section 17-B is not a judgment, hence this special appeal Under Section 18 of the Rajasthan High Court Ordinance is not maintainable.
10. Shri Mohd. Rafiq, as against aforementioned Registry's objection, placing reliance upon the decision in Shah Babulal Khimji v. Jayaben D. Kania AIR 1981 SC 1786: 1981 (4) SCC 8, contended that though the order granting interim relief Under Section 17-B of the Act, impugned in this special appeal is, an interlocutory order but amounting to judgment and, therefore, the special appeal against such interlocutory order amounting to judgment is maintainable.
11. In Shah Babulal Khimji (supra), the single Judge during the pendency of a suit for specific performance of a contract on the original side of the Bombay High Court dismissed plaintiff's application for appointment of receiver as also for interim injunction and against such dismissal, the plaintiff had preferred an appeal before the Division Bench which dismissed it as being not maintainable on the ground that the impugned order of the single Judge was not a judgment as contemplated by Clause 15 of the Letters Patent of the High Court. The Apex Court inter alia observed that Section 104 read with Order 43, Rule 1, CPC applies to an appeal against an order of single Judge of the High Court to the Division Bench, and further that even if it be assumed that Order 43, Rule 1 CPC does not apply to Letters Patent Appeals, the principles governing these provisions would apply by process of analogy, and that having regard to the nature of the orders contemplated in various clauses of Order 43 Rule 1 CPC there can be no doubt that these orders purport to decide valuable rights of the parties in ancillary proceedings even though the suit is kept alive and that these orders do possess the attributes or character of finality so as to be judgments within the meaning of Clause 15 of the Letters Patent and hence appealable to a larger Bench.
12. According to the Apex Court, the intention of the givers of the Letters Patent was that the word 'judgment' should receive a much wider and more liberal interpretation than the word 'judgment' used in the Code of Civil Procedure, and it cannot be said that any order passed by a Trial Judge would amount to a judgment, otherwise there will be no end to the number of orders appealable under the Letters Patent. However, it seems that the word 'judgment' has undoubtedly a concept of finality in a broader and not a narrower sense. As per dictum of law laid down in Shah Babulal Khimji (supra), a judgment can be of three kinds (1) final judgment, (2) preliminary 'judgment and (3) intermediary or interlocutory judgment. The Apex Court further observed that every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned and similarly, orders passed by the trial Judge deciding question of admissibility or relevancy of a document and also cannot be treated as judgments because the grievance on this score can be corrected by the Appellate Court in appeal against the final Judgment. The Apex Court relying upon the tests laid down by Sir ARNOLD WHITE, CJ., in Tuljaram Row v. MKRY Alagappa Chettiar, ILR 35 Mad P. 1 and by Sir COUCH, CJ., in the Justices of the Peace for Calcutta VIII Bengal L.R. p. 433 observed that following considerations must prevail with the Court:
"(1) That the Trial Judge should be trusted to pass discretionary interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders passed by the Trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice to one party or the other cannot be treated as a judgment otherwise the appellate Court (Division Bench) will be flooded with appeals from all kinds of orders passed by the Trial Judge. The Courts must give sufficient allowance to the Trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice.
(2) That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings."
Though the Apex Court gave some illustrations (in para 120) of interlocutory orders for treating as judgments under clause 15 of the Letters Patent but hasten to add that these illustrations are not exhaustive and at the same time in para 125, the Apex Court made it clear that it refrained from expressing any opinion on the nature of any order passed by a trial Judge in any proceeding under Article 226 of the Constitution which are not governed by the Letters Patent but by rules framed under the Code of Civil Procedure under which in some High Courts, writ petitions are heard by Division Bench, while in other High Courts, writ petitions are heard by a single Judge and a right of appeal is given from the order of the single Judge to the Division Bench after preliminary hearing.
13. Having considered the decision cited by Mr. Rafiq in Shah Babulal Khimji (supra), the ratio of aforesaid decision does not render any help in advancing his case to hold the impugned order Under Section 17-B of the Act in the case at hand as judgment within the meaning of the Letters Patent being appealable, inasmuch as the impugned order being interlocutory one in order to be 'judgment' does not contain the traits of finality because it did not decide the questions in controversy in the writ petition, itself, which are yet to be finally adjudicated upon, as to the validity of the impugned Award of setting aside the removal of the employee from service and of his reinstatement in service in our considered view, this special appeal is not maintainable and entertainable as it assailed the interlocutory judgment/order which does not contain trapping of finality, so also keeping in view the decision in Jodhpur Sahakari Bhandar v. B. N. Kalla 1982 WLN (UC) 253, wherein the Division Bench of this Court held that the special appeal against an interim order passed by the learned single Judge whereby while staying the operation of the impugned order in writ petition he directed the employer to pay the last salary drawn by the employee till the disposal of the writ petition, is not maintainable, and therefore, it was dismissed.
14. As regards merits of the impugned order passed under Section 17-B of the Act, as enumerated above, in fact, Section 17-B gives a mandate to the Courts to award wages if the conditions stipulated in this section are satisfied, irrespective of the result of the proceedings pending before the High Court or the Supreme Court, even in extreme cases where if it is demonstrated that the award passed is either without jurisdiction or is otherwise a nullity or grossly erroneous or perverse. Thus, though we refrain to examine the validity of the Award impugned in the writ petition wherein the impugned order granting interim relief Under Section 17-B is passed, but in our considered view merely because as has been contended by Mr. Rafiq that the Award impugned in the writ petition itself was not only without jurisdiction in view of the application of the Statutory Canteen Rules and exclusion of operation of the Industrial Disputes Act under which the Award had been passed by the Labour Court, or the Industrial Court (sic) Award is otherwise a nullity or grossly erroneous or perverse, it cannot be held that learned single Judge is debarred from exercising its powers under Article 226 of the Constitution to invoke Section 17-B of the Act, we are fortified from the decision of the Apex Court in Bharat Singh 's case (supra).
15. The provision in Section 17-B is, therefore, intended to be invoked in the course of the proceedings in the High Court and the High Court is entitled to make an order as contemplated by Section 17-B in the proceedings taken by the employer challenging the order of the Labour Court in the High Court. It is thus clearly permissible for the High Court to make an order requiring the employer to comply with the provisions of Section 17-B of the Act.
16. In the Instant case, it is no doubt true rather an admitted position that under the impugned Award dated September 26, 1995 (Annexure 5) the Central Industrial Tribunal has directed reinstatement of the employee (respondent) and the employer (present appellant) has preferred writ petition proceeding against such an Award of reinstatement, wherein the order granting interim relief Under Section 17-B has been passed. The respondent employee has filed an application duly supported by his affidavit Under Section 17-B of the Act stating therein as to his non employment pending the proceedings. In this manner the respondent employee has absolved his obligation as imposed in Section 17-B by satisfying the requisite conditions, whereas the appellant employer has failed to satisfy the Court that the employee had been otherwise employed receiving adequate remuneration. Hence, in our view, the: respondent employee was clearly entitled to an order Under Section 17B of the Act and the employer (appellant) cannot be absolved of the obligation/liability to pay full wages last drawn to the employee during the pendency of writ petition. We do not find any illegality or perversity in the impugned order Under Section 17-B of the Act passed by the learned single Judge.
17. Since we have held supra that Section 17-B of the Act gives a mandate to the Courts to award wages irrespective of the result of the proceedings before the High Court or the Supreme Court as to the validity of the impugned Award, we have refrained from examining the questions at controversy in the writ petition, itself, as to whether the Award is either without jurisdiction in view of applicability of the Canteen Rules and/or exclusion of operation of the Industrial Disputes Act, or is otherwise of a nullity of grossly erroneous or perverse in view of the contentions advanced by Mr. Rafiq and, therefore, it is made clear that all such questions which go to the merits of validity of the Award, itself, assailed in the pending writ petition, are left open to be adjudicated upon by the learned single Judge and that being so, we need not refer in detail here the ratio of decisions cited by Mr. Mohd, Rafi viz. (1) M. Venugopal v. Divisional Manager LIC AIR 1994 SC 1343 : 1994 (2) SCC 323 : 1994-1-LLJ-597, (2) Sub Divisional Inspector of Post Vaikam v. Theyyam Joseph AIR 1996 SC 127.1: 1996 (8) SCC 489 : 1996-II-LLJ- 830, (3) Himanshu Kumar v. State of Bihar, AIR 1996 SC 3657 : 1997 (4) SCC 391 : 1998-II-LLJ-15.
18. As a result of the above discussion, this special appeal being not maintainable and devoid of merit on the question of validity of interim order Under Section 17-B of the Act is hereby dismissed summarily.