Badagara Sahakaran Asupathri vs Shaji K.K on 1 November, 2024

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Kerala High Court

Badagara Sahakaran Asupathri vs Shaji K.K on 1 November, 2024

This Review Petition is filed seeking to review the order dated 11.04.2024 in I.A No.1 of 2024 in W.A.No.1949/2022. By the said order, the application filed by the workman under Section 17B of the Industrial Disputes Act in the pending appeal was allowed and directions were issued to the Management to forthwith pay to the workman the last drawn wage on and from 12.08.2022, the date of filing of the Writ Petition challenging the judgment passed by the Labour Court.

2. Sri. Raghuraj, the learned senior counsel appearing for the review petitioner as instructed by Sri. Vivek Menon, submitted that the order passed is vitiated by errors apparent on the face of the record. It is pointed out that the pre-requisite to sustain the claim of a workman for wages under Section 17B of the ID Act is the pendency of a proceeding against the award obtained by him at the instance of the management in the High Court or the Supreme Court. It is urged that in the case on hand, the proceedings against the award can be construed as pending before this Court only on the day on which the Writ Appeal was admitted on file by this Court, ie., on 20.12.2022. In that view of the matter, the direction to pay the last drawn wage on and from 12.08.2022, 2024:KER:81382 RP No.607 of 2024 3 the date on which the Writ Petition was filed is clearly erroneous. In order to substantiate his contentions, the learned senior counsel has referred to the observations made by a Division Bench of this Court Commandant Defence Security v. Secretary, NCCGUE Assn1 and another Division Bench of this Court which followed the earlier precedent in Lourdes Hospital v. State of Kerala and Another2.

3. Sri. Vinod Bhat, the learned counsel appearing for the workman submitted that the contention advanced by the learned counsel appearing for the review petitioners cannot be sustained. It is urged that the award passed by the Labour Court ordering reinstatement in service with 50% of the back wages was challenged before this Court and the said Writ Petition was dismissed. Challenging the said judgment, Writ Appeal was preferred and it was when notice was received on the same that the workmen entered appearance and filed an application under Section 17B of the Act. Referring to the observations made by the Apex Court in Bongaigaon Refinery and PC Ltd and Others v. Girish Chandra Sarmah3, it is submitted that the Writ Appeal is merely a continuation of the proceedings in the Writ Petition.

4. We have considered the submissions advanced.

5. We find that I.D.No.15/20 was preferred before the Labour Court, 1 [2001 (2) KLT 104] 2 [2022 (2) KHC 185] 3 [MANU/SC/7766/2007] 2024:KER:81382 RP No.607 of 2024 4 Kozhikode, seeking reinstatement in service with full back-wages, and continuity of service. By award dated 08.04.2022, the Labour Court came to the conclusion that denial of employment to the workman is unjustifiable and that he is entitled to be reinstated in service with 50% of the back-wages from the date of denial of employment till the date of reinstatement. After much delay, a Writ Petition was filed as W.P.(C) No.29536/2022 on 12.08.2022. The case came up for admission on 20.9.2022 and a learned Single Judge of this Court, after evaluating the contentions, dismissed the Writ Petition. Challenging the judgment, a Writ Appeal was preferred on 05.12.2022. On receipt of the notice, the workman entered appearance and filed an application under Section 17B of the Act on 20.02.2024. In the said application, it was asserted that he had been kept out of employment ever since the termination of his service and that he was finding it difficult to sustain himself. Though a counter affidavit was filed by the respondents, except for vague assertions, they were not in a position to state that the workman was gainfully employed elsewhere. It was in the said circumstances that the application was allowed by order dated 11.04.2024 ordering the payment of the last drawn wage on and from 12.08.2022, the date on which the Writ Petition was filed.

6. Under Section 17B of the Act, the workman is entitled to payment of full wages pending proceedings in higher court. The Statute requires the satisfaction of the following conditions:

2024:KER:81382 RP No.607 of 2024 5

i) An award by a Labour Court, Tribunal or National Tribunal directing reinstatement of a workman is assailed in proceedings in a High Court or the Supreme Court.

ii) During the pendency of such proceedings, the employer is required to pay full wages to the workman.

iii) The wages stipulated under Section 17B are full wages last drawn by him inclusive of any maintenance allowance admissible to him under any rule.

iv) Such wages would be admissible only if the workman had not been employed in any establishment during such period and an affidavit has been filed to such effect.

7. In that view of the matter, when an application is filed by the workman under Section 17B, Courts have to remain cognizant and make an inquiry qua the following four aspects:

(a) First, whether there is, in place, an award, passed by a forum referred to in Section 17B of the Industrial Disputes Act which directs reinstatement of the respondent/workman.

(b) Second, whether the employer has preferred proceedings against such an award either in the High Court or in the Supreme Court.

(c) Third, whether the workman has filed an affidavit stating therein that he is not employed in any establishment.

(d) Lastly, whether the workman is employed in any establishment 2024:KER:81382 RP No.607 of 2024 6 [during the relevant period] and has received adequate remuneration for the services rendered. Thus, for the period the workman is found to be employed no wages are payable to the employer (See North Delhi Municipal Corporation v. Bal Kishan And Another4)

8. Section 17B of the Act 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, Parliament thought it proper to limit it 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". (See Dena Bank v. Kiritikumar T. Patel5)

9. In Dena Bank ( Supra) it was further held as under:

As regards the powers of the High Court and the Supreme 4 ( 2021 SCC Online Del 5543) 5 1998 AIR SC 511 2024:KER:81382 RP No.607 of 2024 7 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 amount 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 an 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 dehors the provisions contained in Section 17-B and while giving the direction, the court may also give directions regarding refund or recovery of the excess amount in the event of the award being set aside.

10. The Court can enforce the spirit, intendment and purpose of the legislation that the workman who is to get the wages from the date of the award till the challenge to the award is finally decided as per the statement of the objections and reasons of the Industrial Disputes (Amendment) Act, 1982 by which Section 17B was inserted in the Act (See Dena Bank v. Ghanshyam [JT 2001 Supp (1) SC 229]).

11. Now the question is whether the order is liable to be reviewed for the reason that this Court had ordered that the payment of back wages under Section 17B shall be paid on and from 12.08.2022, the date of filing of the Writ Petition challenging the judgment passed by the Labour Court. In Shyam Sunder v. Ram Kumar Appeal (Civil) 4680 of 1993 decided on 30 July, 2024:KER:81382 RP No.607 of 2024 8 2001, it was held by Hon'ble Supreme Court that "the legal position that emerges on review of the second category of decisions is that the appeal is a continuation of the suit. It is important to note that the Labor Court decided in favor of the workman and it was taken up before this Court in a writ petition as no further appeal is provided against the order passed by the Labor Court. In the writ petition, the management carried forward the cause because they failed before the Labour Court. As held in Dayawati v. Inderjit6, the only difference between a suit and an appeal is that an appeal "only reviews and corrects the proceedings in a cause already constituted but does not create the cause. As it is intended to interfere in the cause by its means, it is a part of it, and in connection with some matters and some statutes, it is said that an appeal is a continuation of a suit.

12. In that view of the matter, the contention of the learned Senior Counsel that the appeal is a fresh proceeding and it is unrelated to the writ petition and has to be regarded independently does not appeal to us. What is under challenge in the appeal is the judgment of the learned Single Judge dismissing the writ petition preferred against the order passed by the Labor Court. Thus, in our view, the Writ Appeal is only a continuation of the writ petition challenging the reference/claim originally filed by the workman before the Labour court. Furthermore, as held in Dena Bank (supra) nothing 6 AIR 1966 SC 1423 2024:KER:81382 RP No.607 of 2024 9 precludes the High Court or the Supreme Court from passing an order directing payment of a higher amount to the workman if such a higher amount is considered necessary in the interest of justice.

No case for review of the order is made out. This Review Petition is dismissed.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE Sd/-

                                                         P.M.MANOJ
IAP                                                       JUDGE

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