Andhra HC (Pre-Telangana)
Management Of Praga Tools Ltd. vs Chairman-Cum-Presiding Officer, ... on 17 July, 1995
Equivalent citations: (1996)ILLJ748AP
JUDGMENT P.S. Mishra, C.J.
1. This appeal is directed against the order of a learned single Judge, pending challenge to an award of reinstatement of a workman by Additional Industrial Tribunal-cum-Additional Labour Court, Hyderabad. Learned Single Judge of this Court has ordered suspension of the impugned award on condition that the appellant comply with the provisions of Section 17-B of the Industrial Disputes Act. The respondent-workman appeared and made a grievance that the appellant, while implementing the provisions of Section 17-B of the Act, paid him the wages at the rate at which he was drawing on the date of termination of services and not at the current rate of wages. Learned single Judge has said, "By current wage, I mean the quantum of wage currently paid to a fresh recruit to the post held by the concerned delinquent employee." He (the learned single Judge) has accordingly directed for payment of the current wages to the respondent-workman.
2. Learned counsel for the appellant has challenged the impugned order on grounds that : (1) It is not correct to read in Section 17-B of the Act for, "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......" the wages currently paid to the employees who are engaged to do the work similar to the work the workman was doing before his removal from service : (2) In no case, however, any wage can be ordered to be paid until the award becomes executable i.e., 30 days from the date of publication and (3) Section 17-B is a provision creating a liability to pay upon the employer if he wanted suspension of the award of reinstatement pending any proceeding against the award in High Court or the Supreme Court; it does not create any enforceable right in the employee for payment of wages and does not take away the power of the Court to stay the implementation of the award until disposal of the proceedings before it.
3. Speaking for a Full Bench of the Madras High Court in Godrej and Boyce Mfg. Co. v. Pr. Lab. Court Madras 1992 I CLR 454 one of us has stated as follows :
"11. Consensus of judicial opinion is that there is no vice in the rule enshrined S. 17B of the Act inasmuch as it is not unconstitutional and although it does not infringe or makes inroad in any manner into this Court's power under Art. 226 of the Constitution of India, it creates a liability upon the employer an conversely, a right in the workman to pay and receive wages last drawn by him inclusive of any maintenance allowance admissible to him under any rule during the period of pendency of the proceedings in the Court with the exception that if during this period or any part thereof he was gainfully employed elsewhere, he would not be entitled to such wages for the period of gainful employment. In Chitram and Co. Ltd. case (Supra), it has been rightly stated by a Division Bench of this Court that S. 17B cannot be construed as in any manner taking away or fettering the plenary powers of the High Court under Arts. 226 and 227 of the Constitution of India, to make appropriate orders taking note of the relevant facts. That appropriate order will invariably be to the aid of the workman for payment of full wages pending proceedings in the court unless the award is demonstrated to be a nullity or made without jurisdiction. The unfettered power of the Court under Art. 226 of the Constitution cannot be used to destroy the statutory right granted to a workman under S. 17B of the Act, i.e., a right pendente lite which has been recognised, as well have seen to remove the hardship and to protect the interests of the workman. The workman cannot be left uncared to suffer a total deprivation of wages merely because the employer has chosen and accordingly initiated a proceeding under Arts. 226 and 136 of the Constitution of India. This beneficial legislation that operates within a limited sphere is subject to conditions laid down by the section itself and that the section nowhere lays down that in extreme cases where it is demonstrated that the award passed is either without jurisdiction or is otherwise a nullity, the High Court or Supreme Court is debarred from exercising its powers under Arts. 226 and 136 of the Constitution.
12. Before we conclude and answer the reference, we feel constrained to observe that any challenge to the award on the ground that it is without jurisdiction or is otherwise nullity alone will not be sufficient to suspend the operation of S. 17B of the Act. The final adjudication in a case where the award is without jurisdiction or is otherwise a nullity shall ordinarily meet the ends of Justice. The workman, who shall be waiting for the implementation of the award during the pendency of the proceedings, however, shall receive only the wages at the rate last paid for the period of the pendency of the proceedings in the Court. It is not a burden of any serious consequence upon the employer, but will be a deprivation of a sort which may cause havoc to the workman and his family. If we proceed on the footing that the Court's power to make the final order includes the power to make an interim order, then we may say, the power will extend to suspending the liability of the employer under S. 17B of the Act and accordingly the right of the workman to receive wages pendent lite. But, this will be possible in the rearest of the rare cases. Otherwise, it will defeat the very purpose for which this section has been introduced in the Act. There shall be any number of employers/managements, who shall successfully contrive petitions and proceedings challenging the award on some such grounds as the award being without jurisdiction or nullity. Court cannot afford to be manipulated and allow the management/employer to use the interim order as a weapon to avoid such a statutory liability. Some error of fact or even some error of law alone will not thus be enough to issue any interim order. If, however, the error is such that goes to the root of the jurisdiction of the Tribunal and the Court has got sufficient materials to ignore the effect of S. 17B of the Act, the Court may decline to order payment of wages pendente lite. The Bombay High Court in the case of ELPO International Ltd. v. K. B. Joshi and Others (Supra), has indicated this caution in the words, in Para 8 (P. 215) that :
".... Extreme cases where it is demonstrated that the award passed is either without jurisdiction or is otherwise a nullity....." the Court can decline to make an order in terms of S. 17B of the Act. The words "or grossly erroneous or perverse" in that judgment and in the judgment of the Division Bench of this Court in Chitram and Company (Supra), have to be understood only to mean illustratively when the Court may treat the award a nullity."
4. The above, in our opinion, answers the second and the third contentions in full and we are in respectful agreement with the above view. When Section 17B creates a liability upon the employer and conversely a right in the workman to pay and receive wages last drawn by him inclusive of any maintenance allowance admissible to him under any rule during the period of pendency of the proceedings in the Court with the exception that if during this period or any part there of he was gainfully employed elsewhere, he would not be entitled to such wages for the period of gainful employment, the Court has unfettered power under Article 226 of the Constitution to grant stay of the final adjudication i.e., the award. But this power cannot be used to destroy the statutory right granted to a workman under Section 17-B of the Act i.e., a right pendente lite which has been recognised to remove the hardship and to protect the interests of the workman. The workman cannot be left uncared to suffer a total deprivation of wages merely because the employer has chosen and accordingly initiated a proceeding under Article 226 or 136 of the Constitution. We have good reasons to hold that the expression "wages last drawn by him" cannot mean the quantum of money received by the workman last from the employer before he was discharged or dismissed from service. The Act carries a definition of "Wages" to mean "All remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment, or of work done in such employment, and includes -
(i) such allowances (including dearness allowance) as the workman is for the time being entitled to;
(ii) the value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of foodgrains or other articles;
(iii) and travelling concession;
(iv) any commission payable on the promotion of sales or business or both;
but does not include (a) any bonus; (b) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in force;
(c) any gratuity payable on the termination of his service. (See Section 2(rr) of the Industrial Disputes Act). According to this wages is a comprehensive expression for all remuneration capable of being expressed in terms of money and payable to a workman in respect of his employment if the terms of employment expressed or implied were fulfilled. The expression "full wages last drawn by him" thus must mean the wages which were last payable to the workman and will pick up with the non-payment from the last drawn until, for the reason of suspension of the award of reinstatement, he is entitled to draw. Logically this can only mean that on such suspension of the award of reinstatement. The employee shall receive full wages payable on the date of suspension of the award of reinstatement. Even proceeding on the footing that "full wages last drawn" must mean the pay packet which the employee had received last from the employer words "inclusive of any maintenance allowance admissible to him under any rule of the workman" are only additional or supplementary payment to him as allowances including the dearness allowance etc., which are included in the definition of 'wages' must form part of the wages drawn by him. If this is extended to the rule of revision of scales of pay and wages and the factors which are taken into account, increase in wages for the reasons of revision of pay and allowances must be included in the quantum of money payable to the workman. If this is not accepted and the pay and allowances are kept at the level of the last pay packet of the employee, the increase in dearness allowance which is merged at one stage in the revised scale of pay and new rate of dearness allowance added upon the revised scale of pay, must continue to add to the wages last drawn by the workman. This logically will come almost on par with the current rate of wages paid to the employee or workman of the grade of the workman whose award of reinstatement is sought to be suspended. We have Division Bench judgment of the Karnataka High Court in the case of M/s. Visveswaraya I. and S. Ltd. v. Chandrappa (1993 II CLR 124). While not accepting the contention that revised scale of pay will have to be payable, it is stated.
"Hence, we are of the view that the content of the words "full wages last drawn" would take into their fold the wages drawn on the date of termination of the services plus the yearly increment and the D. A. to be worked out till the date of the Award and that sum has to be paid to the workman during the pendency of the proceedings before this Court. We would like to make it clear that the wages that would be worked out up to the date of the Award shall have to be paid during the pendency of the proceedings before this Court in the event of the award is stayed, without reference to revision of wages, if any, during the pendency of proceedings before this Court."
Bombay High Court's view in the case of Carona Sahu Co. Ltd. v. A. K. Munafkhan 1994 II CLR 445 however is similar to the view taken by us in these words :
"The Parliament had introduced Section 17B of the Act with the object that the workman is not deprived of wages which he is entitled to draw in case the award directing reinstatement is implemented. The workman is deprived of the wages payable in pursuance of the award only because of pendency of the proceedings. The award directing reinstatement and continuity of service makes it clear that the dismissal of the employee was illegal and in the eyes of law the workman continued in service and consequently the workman was entitled also to payment of backwages. The determination of the backwages is only on the basis of what the workman would have drawn during the period commencing from the date of dismissal and till the date of reinstatement and the quantum of back wages includes all the permissible increases during that interregnum. The expression "full wages last drawn" in our judgment means the full wages which the workman was entitled to draw in pursuance of the award and the implementation of which is suspended during the pendency of the proceedings. The submission of Shri Bhaktal, that the expression "last drawn" suggests that the workman is entitled only to that amount which was received by him at the time of dismissal, cannot be accepted. Though the word "drawn" connotes past tense, it is obvious that the proper construction of the section is that the workman is entitled to the full wages which the workman would have been entitled to draw but for the pendency of the proceedings in this Court."
5. We are in respectful agreement with the view expressed by Bombay Court. We concluded accordingly that the learned single Judge has committed no error.
6. There is hardly any reason for us to detain our conclusions for answering the argument that the Court cannot take into account the date of the award and should order, if at all, payment in lieu of reinstatement, from the date the award becomes executed. Date of the award shall always be the date when the award becomes enforceable and if backwages are not granted and only reinstatement is ordered, the reinstatement shall take place only when the award is enforced and it can be enforced only from the date it is made enforceable.
7. There is no mistake, in our opinion, in the judgment of the learned singal Judge. The same is affirmed. The appeal is dismissed.