Gujarat High Court
Dasrathsinh Lalubha Zala vs Gujarat Electricity Board on 2 May, 2008
Equivalent citations: 2008 LAB. I. C. (NOC) 1016 (GUJ.), 2008 (3) AJHAR (NOC) 1116 (GUJ.)
Author: H.K. Rathod
Bench: H.K. Rathod
JUDGMENT H.K. Rathod, J.
1. Rule. Service of Rule is waived by the learned Advocate Mr. Sinha on behalf of the respondent herein. In the peculiar facts and circumstances of the case and with consent of both the learned Advocates, matter is taken up for final hearing today itself.
2. Heard learned Advocate Ms. Farhana Y. Mansuri for the petitioner and Mr. SN Sinha, learned Advocate for the respondent Board.
3. This case is having a history how the poor workman is being harassed by Public Authority taking shelter of legal machinery, being a glaring example, therefore, facts of the present case are considered as under:
4. The petitioner workman was working with the respondent Board. In the year 1990, his services were terminated by the respondent Board and, therefore, he raised an industrial dispute which was referred to the labour court by the appropriate Government. Reference No. 258 of 1990 was decided by the labour court on 1st June, 2001. Labour Court granted reinstatement with 40% back wages for the intervening period. Said award made by the labour court was challenged by the Gujarat Electricity Board by filing Special Civil Application No. 1327 of 2003 wherein this Court has, by order dated 30.4.2003, rejected the said petition. Workman is out of job since 1990. Order of this Court dated 30.4.2003 in SCA No. 1327 of 2003 is reproduced as under:
Heard learned advocate Mr. Munshaw for the petitioner. In this petition, the petitioner has challenged the award made by the labour court concerned in reference No. 258 of 1990 dated 1st June, 2001 wherein the labour court has granted reinstatement with 40 per cent of the back wages for the intervening period. After considering the record, the labour court has come to the conclusion that the workman has completed continuous service of 240 days and since the order of termination has been passed without complying with the provisions of Section 25F of the ID Act, 1947, the order of termination would become void ab initio. The labour court has also considered the record of the workman and has not granted full back wages but has granted only 40 per cent of the back wages for the intervening period. The issue was discussed in para 10 to 14 of the award. The labour court has come to the conclusion that from November, 1987 to September, 1988, within 11 months,the workman has completed more than 254 days. It is not in dispute that the petitioner has not complied with Section 25F of the ID Act, 1947 before terminating the services of the respondent workman and, therefore, I am of the view that the labour court was right in granting relief in favour of the respondent workman. The labour court was right in granting only 40 per cent back wages for the intervening period. The petitioner has not been able to prove before the labour court that the respondent has been gainfully employed during the intervening period. I am therefore of the opinion that the labour court has not committed any error while passing such an award. Mr. Munshaw has not been able to point out any procedural irregularity or jurisdictional error committed by the labour court. Therefore, there is no substance in this petition and the award in question does not call for any interference in exercise of the powers under Article 226/227 of the Constitution of India.
In the result, this petition is dismissed.
5. Petitioner has succeeded in two proceedings, one before the labour court and another before the learned Single Judge of this Court and yet, the petitioner has remained without reinstatement or wages under Section 17B of the ID Act, 1947 and is also not able to receive single pie though proceedings are pending before the Division Bench of this Court and yet the respondent is denying benefit of Section 17B of the ID Act, 1947 under the pretext that he has issued job offer to the petitioner and, therefore, petitioner is not entitled for benefit of Section 17B of the ID Act, 1947. When the proceedings against the award of reinstatement are pending before the High Court, High Court has no jurisdiction to deny for the benefit of Section 17B of the ID Act, 1947 to the concerned workman. When the award of reinstatement of the workman is under challenge before the Higher Forum, the Higher Forum has no option but to grant such benefit under Section 17b of the ID Act if the employer is not able to point out and prove that the workman is not entitled for such benefit as he is gainfully employed in any establishment and has been receiving adequate remuneration. In State of Gujarat, condition of workers is really pitiable and yet, nobody is looking for the cause of such helpless poor workmen because from them, nothing has to be received by them. Employer can engage advocate and senior advocate but workman would not be able to afford such luxury.
6. Respondent Board is not implementing the a ward in question though petition filed by the petitioner board was dismissed by this Court on 30.4.2003 and, therefore, in between, Special Civil Application No. 2332 of 2007 was filed by the present petitioner workman with a prayer to direct the Board to implement the award in his favour as the petition filed by the board has already been dismissed by this Court. Thereafter, Letters Patent Appeal No. 1957 of 2007 was filed against the order of this Court in SCA No. 1327 of 2003 with a Civil Application No. 13162 of 2007. On 17.10.2007, the Division Bench of this Court passed the following order in LPA No. 1957 of 2007:
Heard Mr. N.D. Nanavati, learned Senior Advocate for Mr. S.N. Sinha, learned advocate for the appellant, and Ms. F.Y. Mansuri, learned advocate for the respondent.
Learned advocate Mr. Nanavati has relied on (1) Indian Drugs and Pharmaceutical Ltd. , and (2) Gangadhar Pillai v. Siemens Ltd. .
Prima facie, it appears that undisputedly the respondent was not recruited after following due procedure on any permanent post. Whatever right he can be said to have acquired is only on account of working for 240 days in a calendar year. In view of the above two judgments, appeal is admitted.
Rule. Ms. F.Y. Mansuri, learned advocate, waives service of notice of rule on behalf of the opponent.
Heard the learned advocates for the parties.
Interim relief in terms of Para-4(B) on condition that the applicant-appellant shall offer work to the opponent as and when regularly appointed watchmen are not available to perform duty, and shall pay wages therefor to the opponent.
Rule made absolute. No costs.
7. Thereafter, an application being Civil Application No. 14860 of 2007 was moved by the workman Dashrathsinh L. Jhala before the Division Bench of this Court in the aforesaid Letters Patent Appeal No. 1957 of 2007 wherein the Division Bench of this Court passed following order on 13.12.2007:
Learned Advocate for the applicant seeks permission to withdraw this application, reserving liberty to the applicant to assert his right before the appropriate authority. Permission as prayed for is granted. Application stands disposed of as withdrawn.
8. Thus, the aforesaid civil application No. 14860 of 2007 filed by the workman was withdrawn reserving liberty to the workman to assert his right before the appropriate authority.
9. Thereafter, the workman approached this Court by filing SCA No. 5344 of 2008 with a prayer that he is in a position of hand to mouth, not able to maintain himself as he is out of job since 1990 and therefore, prayer has been made by him to direct the respondent board to pay to the petitioner wages under Section 17B of the ID Act, 1947and also direct the respondent board to pay accrued amount of Section 17B of the ID Act, 1947 to the petitioner. Against this petition, after being served with the notice issued by this Court, respondent board has filed affidavit in reply, para 1 to 7 thereof, being material, are reproduced as under:
1. That I have gone through the memo and as I am conversant with the facts and as I am competent to file reply, I am filing this reply for the purpose of opposing the admission and the grant of any relief to the petitioner under Section 17B of the ID Act, 1947. I state that the averments and contentions, which are not specifically admitted by me, are categorically denied hereby.
2. At the outset, I humbly raise my objection tot he title of the petition as it is factually incorrect and misleading. Inf act, there is no organization by the name of Gujarat Electricity Board now and there is no Dy General Manager, North Zone at Mehsana' I humbly submit that this petition may be dismissed for this ground alone. All the same, I, as the Ex. Engineer of the successor Company of the erstwhile GEB, offer my remarks on this petition as under:
3. With regard to para 1, I have no remark to offer as it is a formal para.
4. With regard to para Nos. 2 to 6, I offer the remark that they are statements of fact and call for no comment from me.
5. With regard to para 7, I humbly state that the petitioner has not come with clean hands before the Hon'ble Court and therefore the petitioner deserves no equity and no sympathy. With due respect to the petitioner, I submit that he has suppressed the relief already granted to him by the Hon'ble Division Bench, a copy of which is annexed hereto and is marked as Annexure R-1.
6. With regard to para 8, I humbly submit that the petitioner has already been offered job in leave vacancy in compliance with the said orders of the Hon'ble D.B. A copy of the said job offer to the petitioner is annexed hereto and is marked as Annexure R-2. I very humbly and respectfully say that submit that no one has a right to enjoy two wages simultaneously ' employment wage and idle wage ' and, therefore, there is no case for consideration of this petition.
7. With regard to para2 9 to 13, I humbly state that they are formal paras, calling for no remarks from me.
10. Today, learned Advocate Mr. S.N. Sinha for the respondent after reading the affidavit in reply filed by the respondent, raised technical contention that the respondent State Authority now is a company. He also contended that because of the order of the Division Bench of this Court dated 17.10.2007, where interim relief in terms of para 4(B) of the civil application has been granted and which is continuing and during that period, the respondent Board shall have to offer work to the workman petitioner as and when regularly appointed watchmen are not available to perform the duty and shall pay the wages therefor to the petitioner workman. He also relied upon the order of respondent dated 25.4.2008 page 13 annexure R-2 whereby the workman Dashrathsinh Lalubha Jhala has been informed that the respondent is prepared to give work of watchman on daily wage basis. Regular watchman of the respondent is having weekly off on every Wednesday and, therefore, petitioner workman has been informed to perform said duty on every Wednesday. Thus, in a month, workman is entitled to have a work for a period of four days on daily wage basis though he has to maintain the family for 30 days. These facts have been narrated by this Court just to point out and highlight to the society to know how the worker who is out of job since 1990 is being harassed by the public body under the pretext of legal fight for more than 17 years inspite of success before the two forums namely labour court and the learned Single Judge of this Court and though award of reinstatement has been confirmed by the learned Single Judge of this Court in 2003 by judgment dated 30.4.2003. According to the learned Advocate Mr. S.N. Sinha for the respondent, the papers of Letters Patent Appeal were misplaced and, therefore, there was four years of delay and after four years, Division Bench of this Court granted interim relief in terms of para 4(B) on condition that the respondent shall offer work to the petitioner as and when regularly appointed watchmen are not available to perform duty and shall pay wages therefore to the workman. Respondent, in compliance of the said condition incorporated by the Division Bench of this Court, issued order annexure R-2 page 13 to the reply to this petition whereby the workman has been asked to perform duty of watchman on daily wage basis on every Wednesday when regularly appointed watchman is enjoying weekly off, meaning thereby, petitioner will get work for only four days of each month and will get wages accordingly for four days in a month. It is necessary to note that the deponent of the affidavit in reply filed on behalf of the respondent herein namely Bharatkumar M. Patel who is Executive Engineer of the present respondent has not pointed out positive case that the workman is employed in any establishment or gainfully employed and receiving adequate remuneration and, therefore, not entitled to claim wages under Section 17B of the ID Act, 1947. Such positive case has not been put forward by the respondent before this Court in his affidavit in reply filed before this Court. Deponent of the affidavit in reply filed on behalf of the present respondent has also not pointed out as to how and why the workman is not entitled for the wages under Section 17B of the ID Act, 1947 from the date of the award till the date of the orders passed by the Division Bench of this Court in Letters Patent Proceedings.
11. Averments made by the petitioner in para 8 and 9 of the memo of petition, being material, are reproduced as under:
8. The petitioner states and submits that the petitioner is a poor person and in hand to mouth condition since long time and due to pendency of the above said cases, the petitioner is not engaged anywhere for the purpose of employment. It is very difficult to survive in these hard pressed days of inflation, dearness and unemployment, where the index of prices is going high and high day by day. The petitioner is also facing tremendous crisis since the initiation of the proceedings.
9. The petitioner states and submits that at present the petitioner is not gainfully employed anywhere. The petitioner has also made affidavit to this effect which is annexed hereto and marked as Annexure B to this petition.
12. While dealing with the averments made by the petitioner in para 8 of the memo of petition, deponent of the affidavit in reply filed on behalf of the respondent has submitted in para 6 of the reply as quoted above that the petitioner has already been offered job in leave vacancy in compliance with the orders of the Division Bench of this Court. Now, if the job offer as per page 13 annexure R-2 is considered, then, it appears that the petitioner workman has been asked to work on every Wednesday on daily wage basis as watchman in place of regularly appointed watchman who is enjoying weekly off on Wednesday.The deponent of the affidavit in reply filed on behalf of the respondent has also not stated as to how and why the workman is not entitled for such benefit under Section 17B of the ID Act, 1947 for the period from the date of the award till the date of the orders of the Division Bench of this Court dated 17.10.2007 but has evasively stated that no one has a right to enjoy two wages simultaneously ' employment wage and idle wages. In light of the averments made by the present petitioner in para 8 of the petition, such averments made by the deponent in his reply affidavit could be considered as vague as vagueness could be.
13. As regards para 9 of the petition wherein the petitioner has averred that he is not gainfully employed anywhere, the deponent of the affidavit in reply filed on behalf of the respondent has submitted that they are formal calling for no remarks. Thus, the deponent of the affidavit in reply filed on behalf of the respondent is considering such averment as formal averments and, therefore, not submitting any remark as regards averment of unemployment of the petitioner.
14. Therefore, considering the averments made by the petitioner in para 8 and 9 of the petitioner wherein he has specifically made it clear that he is a poor person and in hand to mouth condition since long time and due to pendency of the above said cases, he is not engaged anywhere for the purpose of employment and that it is very difficult for him to survive in these hard pressed days of inflation, dearness and unemployment, where the index of prices is going high and high day by day and that he is also facing tremendous crisis since the initiation of the proceedings and is unemployed and not gainfully employed anywhere, and also considering the averments made by the deponent in affidavit in reply para 6 and 7 while dealing with para 8 and 9 of the memo of petition, averments made by the petitioner in para 8 and 9 have remained uncontroverted since the respondent has not put forward positive case about the gainful employment of the petitioner workman for the period from the date of the award till the date of the orders passed by the Division Bench of this Court. Interim relief against the award of reinstatement dated 1st June, 2001 has been granted for the first time by the Division Bench of this Court on 17th October, 2007 and thereafter, petitioner had approached the Division Bench of this Court by filing Civil Application No. 14860 of 2007wherein the petitioner was permitted to withdraw the said civil application with a liberty in favour of the workman to assert his right before the appropriate authority. According to the petitioner, this Court is appropriate authority for asserting his right and benefit under Section 17B of the ID Act, 1947 and, therefore, the petitioner has approached this Court for asserting his right for benefit of Section 17B of the ID Act, 1947. No doubt, Letters Patent Appeal arising from the order of the learned Single Judge of this Court confirming the award of reinstatement are pending before the Division Bench of this Court and the offer of job made by the respondent to the petitioner in compliance of the interim order of the Division Bench of this Court is limited employment of four days in a month, on every Wednesday when regularly appointed watchman is proceeding to enjoy his weekly off. Whether it can be considered to be the compliance of Section 17B of the ID Act, 1947 or not and whether such job could be considered to be gainful employment or not and whether the amount earned from such four days work in a month could be considered as adequate remuneration or not and whether for rest of the days of month, workman is entitled for the benefit of Section 17B of the ID Act, 1947 or not and whether it could be considered as compliance of the interim directions of the Division Bench of this Court or not. All these are the question required to be considered by the Court while considering the matter at issue but since the matter is at large before the Division Bench of this Court, this Court is not entering into those aspects of the matter while keeping in view the fact that the Division Bench of this Court has granted stay against the reinstatement subject to condition as referred to above on 17.10.2007.
15. In view of these facts, when the petition has been filed before this Court by the poor workman, in view of the pendency of the LPA Proceedings before the Division Bench of this Court, this Court is having jurisdiction to examine the whether any relief could be given to the workman for a limited period from the date of the award till the date on which Division Bench of this Court granted stay against the award in question. Even otherwise, the respondent has not raised any objection about the maintainability of the present petition as can be seen from the reply of the respondent and the submissions made by the learned Advocate Mr. Sinha before this Court. Therefore, in view of the peculiar facts and circumstances of this case, this Court is having jurisdiction to examine this limited aspect and to pass appropriate orders under Article 226 of the Constitution of India.
16. Therefore, considering the fact that the workman is out of job since 1990 and is not able to get job though labour court has made award dated 1st June, 2001 in his favour and that award has been confirmed by the learned Single Judge of this Court on 30.4.2003 in SCA No. 1327 of 2003, and thereafter, after a period of four years, Division Bench of this Court passed interim orders staying operation of the award subject to the condition incorporated in the order of stay dated 17.10.2007 by the Division Bench of this Court and, therefore, he is not able to get the benefit of Section 17B of the ID Act, 1947 and is also not able to get full employment in service for enabling him to maintain his family and, therefore, whether, such situation created by the respondent Board at the instance of legal proceedings is permissible or not. According to my opinion, such type of legal battle between mighty Board and poor workman is not permissible and the respondent Board cannot be permitted to deny such benefit under Section 17B of the ID Act, 1947 on one hand and on the other hand deny full employment to the workman and the workman means the petitioner is entitled for the last drawn wages under Section 17B of the ID Act, 1947 for the period from the date of the award 1st June, 2001 till the date on which the Division Bench of this Court granted stay against the operation of the award. On one hand, respondent board is not implementing the award in question and on the other, respondent board is also not complying with the mandatory provisions of Section 17B of the ID Act, 1947 as if it has complied with the interim direction of the Division Bench in letter and spirit while considering the award of reinstatement as a mere piece of paper and a paper decree and nothing else. Such an approach on the part of the respondent cannot be tolerated. According to the law laid down by the apex court in Dena Bank v. Kiritkumar T. Patel reported in 1997(2) GLH 946 : AIR 1998 SC 511, and also in n case of Regional Authority, Dena Bank and Anr. v. Ghanshyam reported in 2001 AIR SCW 2150, when the labour court has made award of reinstatement and proceedings against such an award of reinstatement are pending before the higher forum, then, the High Court has no discretionary power to deny the benefit of Section 17B of the ID Act, 1947 unless the employer is able to establish that the workman is employed in any establishment and is receiving adequate remuneration from the establishment. In this case, the respondent Board has not come forward with a positive case that the petitioner was been gainfully employed in any establishment. In the case before hand, proceedings against the award of reinstatement are pending before the Division Bench of this Court and when the petitioner had approached the Division Bench of this Court for such benefit, by filing Civil Application No. 14860 of 2007, liberty was given to the petitioner to assert his right before the appropriate authority.
17. This Court had an occasion to consider the provisions of Section 17B of the ID Act, 1947 in Civil Application No. 15422 of 2007 in Special Civil Application No. 3797 of 2006 on 4.2.2008. Relevant observations made by this Court in para 11 to 20 while considering various decisions of the apex court, this Court, and other High Courts are reproduced as under:
11. This Court (Coram : H.K. Rathod, J.) has, very recently, in brief, on 4th February 2007, considered the question of benefit of Section 17B of the Industrial Disputes Act, 1947 in case of Chemical Mazdoor Panchayat v. Krishak Bharti Co-Operative Ltd. and Ors. In Civil Application No. 11809 of 2007 in Special Civil Application No. 13590 of 2007. Therefore, the relevant observations are quoted as under:
12. I have considered the submissions made by both the learned advocates appearing on behalf of respective parties and I have also perused the award passed by Industrial Tribunal, Surat. The Industrial Tribunal has directed the reinstatement of the concerned workmen, for that, there is no dispute between the parties. Whether Tribunal has jurisdiction to issue such direction or not and whether such kind of award is nullity or not is to be the question which can be examined by the Court at the time of final hearing. The benefit of Section 17B being a statutory mandate must have to be paid to the workmen if condition incorporated in Section 17B is satisfied by the workmen. This question has been examined in detail by Apex Court in case of Dena Bank v. Kiritkumar T. Patel reported in 1997(2) GLH 946 : AIR 1998 SC 511. Thereafter, the Apex Court has also been examined the same question in case of Regional Authority, Dena Bank and Anr. v. Ghanshyam reported in 2001 AIR SCW 2150.
13. These aforesaid two decisions are on the subject where Apex Court has considered the object of Section 17B of the Industrial Disputes Act, 1947 and also considered that being a statutory mandate, High Court cannot deny the benefit to the concerned employee if condition is satisfied by the workman.
14. Relevant observations as regards the object of Section 17-B of the Industrial Disputes Act, 1947 made by the Apex Court in para 22 of the aforesaid decision are reproduced as under:
As indicated earlier, Section 17-B has been enacted by Parliament with a view to give relief to a workman who has been ordered to be reinstated under the award of a Labour Court or the Industrial Tribunal during the pendency of proceedings in which the said award is under challenge before the High Court or the Supreme Court. The object underlying the provision is to relieve to a certain extent the hardship that is caused to the workman due to delay in the implementation of the award. The payment which is required to be made by the employer to the workman is in the nature of subsistence allowance which would not be refundable or recoverable from the workman even if the award is set aside by the High Court or this Court. Since the payment is of such a character, the Parliament thought it proper to limit 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". To read words to mean wages which would have been drawn by the workman if he had continued in service if the order terminating his services had not passed since it has been set aside by the award of the Labour Court or Industrial Tribunal would result in so enlarging the benefit as to comprehend the relief that has been granted under the award is not refundable or recoverable in the event of the award being set aside it would result in the employer being required to give effect to the award during the pendency of the proceedings challenging the award before the High Court or the Supreme Court without his being able to recover the said amount in the event of the award being set aside. We are unable to construe the provisions contained in Section 17-B to cast such a burden on the employer. In our opinion, therefore, the words "full wages last drawn" must be given their plan and material meaning and they cannot be given the extended meaning as given by the Karnataka High Court in Vishveswaraya Iron and Steel Ltd. (supra) or the Bombay High Court in Carona Sahu Co. Ltd. (supra).
15. In para 24 of the judgment, the Hon'ble apex court has also observed as under:
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 amounts 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 order directing payment of a higher amount to the workman if such higher amount is considered necessary in the interest of justice. Such a direction would be de-hors the provisions contained in Section 17-B and while giving the direction the Court may also give the direction 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. (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.
16. The object of Section 17-B of the Industrial Disputes Act, 1947 and the jurisdiction of the High Court has been considered by the apex court in case of C.M. Saraiah and E.E. Panchayat Raj Department and Anr. reported in 2000-I-LLJ 23. Relevant observations made in para 3 are reproduced as under:
3. Having examined the provisions of Section 17-B of the Industrial Disputes Act, we are of the considered view that the Court has no jurisdiction to direct non-compliance with the same when the condition precedent for passing an order in terms of Section 17-B of the Act is satisfied, and this being the legislative mandate, the Division Bench of the High Court committed serious error in interfering with the direction of the learned Single Judge. We accordingly set aside the impugned order passed by the Division Bench and direct that the order of the learned Single Judge requiring compliance with Section 17-B of the Industrial Disputes Act shall be complied with by the employer. The appeal is accordingly allowed. There shall be no order as to costs.
17. Similarly, Punjab and Haryana High Court has also examined and considered the object of Section 17-B of the Industrial Disputes Act, 1947 in case of Hans Raj Mahajan and Sons (P) Ltd. Jalandhar and Presiding Officer, Labour Court, Jalandhar and Anr. reported in 2001-II-LLJ page 1503. The observations made by the Punjab & Haryana High Court in para 6 are reproduced as under:
6. While reading the above said section, it is clear that the amount is to be paid for the period of pendency of the proceedings. It does not say that the application has to be decided during the pendency of the writ petition. No other interpretation is, therefore, possible so far as this question is concerned. Even if any other interpretation was possible, then also Industrial Disputes Act being a benevolent legislation, the interpretation in favour of the workman has to be accepted.
18. Madras High Court has also considered this aspect in case of Krishna Ramanujam v. and Pandian Roadways Corporation Ltd. and Anr. reported in 2002-I-LLJ page 109. Relevant observations made by the Madras High Court in para 2 are reproduced as under:
In this appeal, we are concerned with the rejection of his application filed under Section 17-B of the Act. The learned Judge has not assigned any reason for dismissing the said petition. Admittedly, against the dismissal of the approval petition, the management has preferred the writ petition before this Court and obtained stay. In such a circumstances, if the management wants to keep the writ petition and interim order to continue necessarily they have to comply with Section 17-B of the Act. No doubt, as directed, the management has deposited Rs. 2,04,000 towards back wages and the appellant/ workman was also permitted to draw the monthly interest. In view of the pendency of the writ petition and also of the fact the interim order staying the operation of the order passed by the Industrial Tribunal is in force, we are of the view that the appellant/workman is entitled to avail the benefit of Section 17-B of the Act. According to the learned Counsel for the workman, from the date of writ petition till date the arrears comes to Rs.61,172. No doubt, learned Counsel appearing for the first respondent/ management by stating that the writ petition is of the year 1994 and that similar writ petitions are being taken up by this Court for final disposal, requested necessary direction for taking up of the main writ petition for final disposal, instead of passing any order under Section 17-B. In this regard, learned Counsel appearing for the workman has brought to our notice a recent pronouncement of the Supreme Court reported in Workmen represented by Hindustan V.O. Corporation Ltd. v. Hindustan Vegetable Oils Corporation 2000 - II - LLJ - 792 wherein their Lordships have observed that 17-B applications should be disposed of with great promptitude and before the disposal of the writ petition. If a petition is filed under Section 17-B, it should be disposed of first and expeditiously and the same cannot be tagged alongwith the main writ petition. Though the writ appeal is kept pending for more than six years, considering the object of bringing the provision of 17-B under the Statute is to alleviate the hardship of the workman quickly, we hereby direct the first respondent management to pay a sum of Rs.61,172.00 by way of a demand draft in favour of the appellant herein, namely, V. Krishna Ramanujam within a period of eight weeks from the date of receipt of a copy of this Order. It is made clear that the said payment is without prejudice to the claim made in the writ petition. The first respondent management is further directed to continue to pay the last drawn wages namely Rs. 746/- to the workman commencing from the month of August, 2001 on or before 5th of succeeding month till the disposal of the main petition. Writ appeal is allowed. No costs.
19. This question has also been considered by the Delhi High Court in case of Hindustan Carbide Private Ltd. and National Capital Territory of Delhi and Ors. reported in 2002-I-LLJ-268. Relevant observations made in para 3 of the said decision are reproduced as under:
3. With respect to my learned brother, I am unable to agree with the reason for declining relief under Section 17-B of the Act. This is the section which has to be adverted to. All that the Section contemplates is the existence of an award directing reinstatement of any workman, the initiation of any proceedings against such award in the High Court or in the Supreme Court, and the workman being unemployed. The Supreme Court has clarified that payments made pursuant to Section 17-B of the Act are not recoverable even in the event of the acceptance of the writ petition. These payments are in the nature of subsistence allowance. The payments also have no nexus with the amount awarded by the Labour Court; they are independent thereof. Hence even if the award is stayed, it would have no bearing on the Order to be passed under Section 17-B of the Act. In granting a stay of the execution of the Award, the payment of its monetary component, and the reinstatement of the workman get postponed. Distress proceedings are held in abeyance. Where the award is assailed, the Court is to consider the grant of last drawn wages under Section 17-B of the Act. The rationale and reasoning behind this section is that the workman should be frustrated and emasculated by the filing of the writ petitions challenging the awards which are expected by the Legislature to have attained finality. The right to appeal does not exist and it would be in appropriate to convert writ jurisdiction to appellate jurisdiction. It is also recognised that because of their pecuniary power, Managements are indefatigable in litigations whereas the workmen can be crippled by it.
20. Thereafter, the Apex Court (Coram : S.C. Agrawal and V.N. Khare, JJ.) has decided this issue in case of Dena Bank v. Kiritkumar T. Patel reported in AIR 1998 SC 511. Therefore, the relevant Para 7, and 15 are quoted as under:
7. It would be convenient at this stage to set out the provisions contained in Section 17-B of the Act which reads as under:
Section 17-B. Payment of full wages to workman pending proceeding is 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 proceeding 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 bee 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 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.
The objects and reasons for enacting the said provisions were as follows:
When Labour Courts pass award of reinstatement, these are often contested by an employer in the Supreme Court of High Courts. It was felt that the delay in the implementation of the award cause hardship to the workman concerned. It was, therefore, proposed to provide the payment of the 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 High courts.
It would thus appear that the object underlying the enacting of the provisions contained in Section 17-B is to give relief to the workman in whose favour an award of reinstatement has been passed by the Labour Court and the said award is under challenge in the High Court of this Court. The said relief has been given with a view to relieve the hardship that would be caused to a workman on account of delay in implementation of the award as a result of the pendency of the proceedings in the High Court or this Court. The question for consideration is: what is the extent to which such relief has been granted to a workman under this provision? The objects and reason do not indicate an answer to this question and its answer has to be found in the provisions of the enactment. Since the expression "full wages last drawn" in Section 17-B has been construed by the various High Court in the decisions referred to above we would briefly refer to the same.
15. In Elpro International Ltd. v. K.B. Joshi, the Division Bench of the Bombay High Court was dealing with the challenge to the validity of the provisions in Section 17-B on the ground that the same are vague and arbitrary inasmuch as no provisions is made as to what would happen to the amount paid if ultimately the employer succeeds and the award is quashed and set aside and are therefore, violative of Article 14 of the Constitution. It was also urged that the said provisions encroach upon the powers of the High Court and this Court under Articles 226 and 136 of the Constitution. The High Court has rejected both the contention. It was held that the absence of a provisions as to what would happen to the amount paid under Section 17-B if ultimately the employer succeeds in the litigation does not make the section either vague or arbitrary because what is to be paid under Section 17-B is in the nature of subsistence allowance that is payable under Section 10-A of the Industrial Employment [Standing Orders] Act, 1946 which is neither refundable nor recoverable irrespective of the result of the enquiry. As regards challenge on the ground of encroachment upon the powers of the High Court under Article 226 and this Court under Article 136 of the Constitution, the High Court was of the view that Section 17-B only guarantees to the workman the payment of wages by the employer during the pendency of the proceedings before the High Court or the Supreme Court and that too subject to the conditions laid down by the said section and the proviso, irrespective of the result of the proceedings and it also imposes an obligation upon the workman concerned to file an affidavit before the Court stating that he has not been employed in any establishment during the pendency of the proceedings and it also absolves the employer of his obligation to pay such wages if he is able to prove to the satisfaction of the Court that the workman had been otherwise and had been receiving adequate remuneration. The High Court has observed that Section 17-B nowhere lays down that in extreme cases it is demonstrated that award passed is either without jurisdiction or is otherwise a nullity or grossly erroneous or perverse, the High Court or the Supreme Court is deterred from exercising its powers under Articles 226 and 136 of the Constitution. On that view the High Court held that Section 17-B does not in any way encroach upon or override the powers of the High Court under Article 226 and this Court Article 136 of the Constitution.
18. The labour Court, Ahmedabad has while making the award dated 1st June, 2001, set aside the termination order and granted 40 per cent back wages for interim period from the date of termination till the date of the award. Therefore, having become entitled for reinstatement from the date of the award, the workman is entitled for full wages from the date of the award till the date on which Division Bench of this Court granted stay against reinstatement. For the period from the date of award till the date on which interim orders were passed by the Division Bench of this Court, no stay was operating against the award in question and yet the workman remained without reinstatement and/or full wages last drawn by him under Section 17B of the ID Act, 1947. Though LPA was filed by the respondent board, it had not obtained any orders against the award in question till 17.10.2007. Therefore, considering the over all circumstances of the case, the workman is entitled for full wages last drawn by him under Section 17B of the ID Act, 1947 from the date of the award till the date on which orders of stay were passed by the Division Bench of this Court as the respondent has not been able to point out and prove before this Court that the petitioner was gainfully employed right from the date of the award and has been receiving adequate remuneration. Averments regarding unemployment made by the petitioner have remained uncontroverted by the respondent as respondent is not offering any comments by considering it as formal averments. Therefore, it is the duty of the respondent as per mandate of Section 17B of the ID Act, 1947 to pay to the petitioner full wages last drawn by the petitioner for the period from the date of the award till the date on which Division Bench of this Court passed interim orders in Letters Patent Proceedings.
19. Therefore, in view of this back ground, according to my opinion, considering the averments made by the petitioner in the memo of petition and also considering the averments made by the deponent in the affidavit in reply wherein the respondent has not been able to point out that the petitioner has been gainfully employed in the establishment and has been earning adequate remuneration for the period from the date of award till the date of interim relief granted by the Division Bench of this Court by order dated 17.10.2007, according to my opinion, the petitioner is entitled for the last drawn wages with effect from 1st June, 2001 till the date of order of the Division Bench of this Court dated 17th October, 2007. I am aware of my limitation and I am also aware about the rights of the Division Bench of this Court and, therefore, I am passing this order within my limitation by granting relief in favour of the petitioner with a direction to the respondent to pay last drawn wages to the petitioner with effect from 1st June, 2001 till the date of the order passed by the Division Bench of this Court i.e. 17.10.2007 within the period of one month from the date of receipt of copy of this order. It is open for the petitioner to claim further wages beyond 17.10.2007 by filing appropriate proceedings under Section 33-C-2 of the ID Act, 1947 and for the period prior to the order of the Division Bench of this Court from the date of the award of the labour court, the respondent Board must have to pay full wages last drawn to the petitioner from 1st June, 2001 to 16th October, 2007 without fail. I have made the observations in this petition with great pain that in Gujarat, still a public body is not available which is able to take care of the rights and interests of the workmen to which the workmen are legally entitled. In the instant case, from the date of the award of reinstatement, the petitioner ought to have been either reinstated in service or ought to have been paid wages last drawn by him under Section 17B of the ID Act 1947 but the respondent has not opted for either of the said two options and as a consequence thereof, even though award of reinstatement has been made on 1st June, 2001, the workman has yet remained without reinstatement and also without benefit under Section 17B of the ID Act, 1947. Respondent being an authority of State, is not supposed to act in such a manner but it is required to set an example of Model Employer. Such type of conduct of the respondent herein has been deprecated by this Court.
20. Accordingly, this petition is partly allowed. Respondent is directed to pay to the petitioner full wages last drawn by the petitioner from the date of the award 1st June, 2001 till the date of the interim orders of the Division Bench of this Court dated 17th October, 2007 within one month from the date of receipt of this order. It is open for the petitioner to claim further wages beyond 17.10.2007 by filing appropriate proceedings under Section 33-C-2 of the ID Act, 1947. Rule is made absolute in terms indicated herein above with no order as to costs.