Madras High Court
The Management Of Chitram And Co. Ltd. ... vs Union Of India (Uoi) Represented By The ... on 1 March, 1990
Equivalent citations: (1990)1MLJ551
JUDGMENT
Nainar Sundaram. J.
1. The petitioner in W.P.No. 1112 of 1984 is the appellant in this writ appeal. The respondents in that Writ Petition are the respondents in this writ appeal. Amongst the parties, we must indicate that the appellant is the Management and the second respondent was the Workman. The second respondent has obtained an award in I.D.No. 307 of 1982, directing his reinstatement by the appellant with backwages. This award, the second respondent obtained at the hands of the third respondent. We are told that this award is the subject matter of challenge in a writ petition, which is pending before this Court. The appellant has put forth an independent challenge of the constitutional vires of Section 17-B of the Industrial Disputes of Act 14 of 1947, hereinafter referred to as the Act, by filing W.P.No. 11112 of 1984. The grounds of challenge put forth by the appellant were examined by the learned single Judge who heard this writ petition and he repelled them and as a result dismissed this writ petition. This writ appeal is directed against the order of the learned single judge.
2. Mr. T. Arulraj, learned Counsel for the appellant would recapitulate and press forth before us the very same grounds of attack urged before the learned single Judge and they run as follows:
(i) The award of an industrial Forum under the Act becomes final as per the provisions under Section 17(2) of the Act and hence it could be questioned before this Court only under Articles 226 and 227 of the Constitution of India and Section 17-B of the Act works as a restriction on the powers of this Court under Articles 226 and 227 of the Constitution of India with reference to granting the party agitating against the awards of Industrial Forums, appropriate orders of stay depending on the facts and circumstances of the case. It is complained that Section 17-B of the Act makes inroad into the powers of this Court under Articles 226 and 227 of the Constitution of India.
(ii) Section 17-B of the Act amounts to an invasion of the fundamental rights guaranteed under Articles 14 and 19(1)(g) of the Constitution of India.
(iii) The amounts disbursed as per the requirements of Section 17-B of the Act will become irrecoverable in the event of the party succeeding in the process resorted to by him under Articles 226 and 227 of the Constitution of India.
3. Section 17-B of the Act reads 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.
Section 17-B of the Act was incorporated into the Act by the Amending Act 46 of 1982, with effect from 21.8.1984. The objects and reasons for enacting the section runs as follows:
When Labour Courts pass awards of reinstatement, there are often contested by an employer in the Supreme Court and High Courts. It was felt that the delay in the 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.
This provision is obviously a piece of social welfare and beneficent legislation intended to ameliorate and relieve the hardships which the workman face on account of prosecution of proceedings by the employer before this Court or the Supreme Court, questioning the awards of the Industrial Forums, directing reinstatement of the workman. The workman, despite his getting an award of reinstatement in his favour, is not able to reap and realise the benefits thereunder, on account of pendency of proceedings of challenge and the Court staying the operation of the award. When the disposal of the challenge, becomes a long drawn process, the hardship faced by the workman becomes much more acute. Section 17-B of the Act is intended to present and presents a solution to such oppressive situation faced by the workman, by providing him reliefs subject to specified conditions. The condition, as could be gleaned from this section, can be summed up as follows:
(i) The workman is not employed in any establishment during the pendency of proceedings before Court;
(ii) An affidavit to that effect is filed by the workman before Court; and
(iii) The Court, if it is proved to its satisfaction that the workman has been employed and has been receiving adequate remuneration during such period, shall not make an order under this section.
It is not as if the workman, by virtue of this section, will be implicity entitled to the benefits of fullwages, without consideration of any further factors. The workman availing of the benefits of this section will depend upon his satisfying the conditions therefor.
4. In Bharat Singh v. Management of New Delhi Tuberculosis Centre (1986) II L.L.J.217, question arose before the Supreme Court as to whether a workman should be denied the benefit of this section, even if the conditions set out therein are satisfied, when the award was passed prior to 21.8.1984. In that context, as to on what background, the introduction of this section has to be viewed and its effects considered, this is what was observed by the Supreme Court in the above pronouncement:
S. It is common knowledge that even before Section 17-B was enacted, Courts were, in their discretion, awarding wages to workmen when they felt such a direction was necessary but that was only a discretionary remedy depending upon Court to Court. Instances are legion where workman have been dragged by the employers in endless litigation with preliminary objections and other technical pleas to tire then out. Right between a workman and his employer is often times an unequal fight. The legislature was thus aware that because of the long pendency of disputes in Tribunals and Courts, on account of the dilatory tactics adopted by the employer, workmen had suffered. It is against this background that the introduction of this section has to be viewed and its effects considered.
After extracting the objects and reasons for enacting Section 17-B into the Act, it was further observed as follows:
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 side in finding out what really persuaded the legislature to enact 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.
5. It is not as if that only by virtue of the introduction of Section 17-B into the Act, this Court gets vested with the jurisdiction to make appropriate orders for the benefits of the workman facing a challenge by the employer of the award that has ensured to the benefit of the workman at the hands of the Industrial Forum. This Court always exercised and shall continue to exercise its powers taking note of the relevant facts and circumstances of each case and it always endeavoured and shall endeavour to give amelioration and reliefs to the workman, despite the pendency of the challenge over the award in his favour at the instance of the employer. This power was always there before and continues to be there even after the introduction of Section 17-B and if at all what Section 17-B could be said to have done is a codification of the entitlement and rights of the workman. But, the section cannot be construed as in any manner taking away or fettering the plenary powers of this Court under Articles 226 and 227, to make appropriate orders taking note of the relevant facts. The outlines for the entitlement and rights of the workman have been etched out by the section, but the working out the same in an appropriate manner could be only by this Court. Despite the introduction of Section 17-B of the Act, this Court is not denuded of its power to make appropriate orders and give directions depending on the facts and circumstances of each case. Section 17-B of the Act by its specific terms, does not even refer to the powers of this Court under Article 226, much less restrict the same which is not permissible for Legislation, short of Constitutional amendment. We are not prepared to hold that Section 17-B of the Act has made an inroad into the powers of this Court under Articles 226 and 227 of the Constitution of India which are wide enough to take note of specific contingencies in each case and provide reliefs and give directions appropriate, in such case. Hence, we are not persuaded to countenance the first contention, put forth by the learned Counsel for the appellant.
6. The vires of Section 17-B of the Act was put in issue in Elpro International Ltd. v. K.B. Joshi and Ors. (1987) II L.L.J.210 before a Bench of the High Court of Bombay adverted to the ruling in Bharat Singh v. Management of New Delhi Tuberculosis Centre (1986) II L.L.J.217 and the relevant passages occurring therein and they summed up their view on the question in the-following terms:
Therefore if the said section 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 employee from the hardship resultant from 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. These wages are to paid if certain conditions are satisfied. Section 17-B read with proviso in clearest terms lays-down as to when workman is entitled to get these wages. Therefore it cannot be said that the said provision is either vague or arbitrary. It operates within the specified limits and, therefore, in our view the challenge to the said section based on Articles 14 of the Constitution must fail.
We are in respectful agreement with the above observation.
7. With regard to the second ground that Section 17-B of the Act amounts to an invasion of the fundamental-rights guaranteed under Articles 14 and 19(1)(g) of the Constitution of India, apart from stating it as a proposition, we did not hear anything substantive through the learned Counsel for the appellant to buttress the ground of challenge. In this regard, we can only refer to and adopt the observations of the learned Judges of the bench of the High Court of Bombay and hold that Section 17-B of the Act is neither vague nor arbitrary and it operates within the specified limits and the challenge based on Articles 14 and 19(1)(g) of the Constitution of India cannot be sustained.
8. With regard to the third ground of attack, namely, the feature of irrecoverability of the amounts disbursed under Section 17-B of the Act, in the case of the employer succeeding before this Court that should not be a ground at all to be taken note of for the purpose of holding that Section 17-B is ultra vires the Constitution of India. Rights and reliefs are being worked out under orders of Court, and the exercise of such powers and the source of the powers should not be frowned upon, on the simple ground that restitution will in certain circumstances, be a remote chance or an impossibility. That risk was and will be always there. Even anterior to the introduction of Section 17-B into the Act, this Court in its discretion and powers had been giving appropriate directions and making suitable orders to meet the ends of justice and to give reliefs to the workman who is facing the drudgery of a prolonged litigation inspite of he being given awards in his favour by the Industrial Forums and the question of restitution becoming an impossibility or a remote chance did not always loom large before this Court to deny such reliefs to the workman during the pendency of the challenge put forward by the employer. After all, the workman is not able to realise the fruits of the award in his favour on account of the agitation over the same by the employer, and the working of the provisions beneficial and at the same time reasonable need not be grudged on the simple ground that in the event of success by the employer, recovery will become a remote chance. It is not necessary to delinate here as to how this power should be exercised by this Court in stated circumstances and contingencies. It has to be, of course, worked out within the parameters of the section. Hence, we repel this angle of attack by the learned Counsel for the appellant on the vires of Section 17-B of the Act.
9. For all the above reasons, this writ appeal fails and the same is dismissed. No costs.