Gujarat High Court
Kirtiben B. Amin vs Mafatlal Apparels on 28 November, 1994
Equivalent citations: (1995)2GLR1362
JUDGMENT S. Chatterji, J.
1. Rule. Mr. Rajesh Dave, learned Advocate for the opponent original petitioner waives service of Rule. By consent of learned Advocates for the parties, Rule is heard to-day.
2. The present Application, at the instance of the workman-original respondent in the aforesaid petition has been filed for vacating the ad-interim order dated 29-3-1994 passed by this Court and/or for effecting the payment as envisaged under Section 17-B of the Industrial Disputes Act, 1947 (hereinafter referred to as the said Act). The employer has challenged the order of the Industrial Tribunal, Ahmedabad, in Approval Application No. (IT) No. 5/93) in Reference (IT) No. 310 of 1986, dated 29-12-1993, whereby the approval for the dismissal of the services of the applicant-workman has been refused by the Tribunal.
3. The attention of this Court has been drawn to the decision of the Division Bench of Calcutta High Court in the case of Samser Ali (SK) v. Keshoram Industries and Cotton Mills Ltd. & Anr. 1988 I CLR 60, wherein it has been held that the Application under Section 17-B of the I.D. Act is maintainable where the challenge is pending before the High Court against the order refusing approval to the order of dismissal as contemplated under Section 33(2)(b) of the I.D. Act. In paragraph 18 of the said decision it has been held that an order made under Section 33(2)(b) of the said Act can be enforced in an application under Section 17-B of the said Act can be enforced in an application under Section 17-B of the said Act and thus it is very difficult to hold in agreement with the submission that on the basis of the language of Section 17-B, the same has application only in respect of reinstatement arising out of awards and not in a case where order has been passed under Section 33(2)(b) of the said Act. In Suresh Sakharam Patil v. Mahindra & Mahindra Ltd. & Anr. 1987 I CLR 105, it has been found that if the Writ Petition challenging the order of the Industrial Tribunal refusing to accord approval to terminate services of petitioner is admitted by High Court, the employee is entitled to salary and other emoluments.
4. However, attention of this Court has also been drawn to the decision of the learned single Judge of Calcutta High Court in the case of Bata India Limited v. The 7th Industrial Tribunal, West Bengal & Ors. 1990 II CLR 844. It appears that the decision of the Division Bench of Calcutta High Court in Samser Ali's case (supra) was not brought to the notice of the learned single Judge.
5. The learned Advocate for the applicant-workman has strongly submitted that there is no bar or impediment for passing the appropriate order under Section 17-B of the I.D. Act although the order of Stay has been made against the refusal to accord approval to the order of dismissal, but in effect the order of dismissal cannot be effected and the employee is suffering. Learned Advocate appearing for the opponent-employer has strongly contended that there is merit in the challenge to the order of the Industrial Tribunal refusing approval to the order of dismissal and instead of passing order of application under Section 17-B, the petition may be disposal of expeditiously.
6. Considering all the aspects of the matter, this Court is of the view that notwithstanding the early hearing of the main petition, there is no bar or impediment to dispose of the application under Section 17-B of the Act. An application under Sect. 17-B of the said Act is maintainable while the petition challenging the order of the Industrial Tribunal refusing to accord approval to terminate services of employee under Section 33(2)(b) of the Act, is maintainable during the pendency of the petition in the High Court.
7. Attention of the Court is also drawn to the decision of the Karnataka High Court in the case of M/s. Visveswaraya Iron & Steel Co. Ltd. v. M. Chandrappa & Anr. 1993 II CLR 124, wherein it has been found that in the light of the definition of the word "wages" as contained in Section 2(rr) of the said Act, the Dearness Allowance which the workman is entitled to for the time being will have to be ordered to be paid. As far as the quantum is concerned, it has been held that if the management wants to have the award, which directs reinstatement stayed, during the pendency of the proceedings before the High Court, it is liable to pay full wages last drawn increasing thereby the wages according to the pay-scale that was prevailing on the date of removal of the workman, with the increments upto the date of Award and the Dearness Allowance as permissible to the pay-scale attached to the post for the time being on the date of the Award.
8. For the aforesaid reasons, this application is allowed. The opponent-employer is directed to take effective steps for the payment of the wages last drawn on the date of termination of services of the application plus yearly increments and Dearness Allowance permissible to pay-scale attached to post from the date of Award. The arrears be paid to the applicant-workman within four weeks from to-day and the current wages on that basis be paid from the month of December 1994. The opponent-employer may move for early hearing of the petition after complying with the aforesaid directions. It is made clear that in the event the management calls upon the employee to join the work without prejudice, during the pendency of the petition, the application-workman will resume the same without prejudice. Rule is accordingly made absolute with no order as to costs.
9. Rule made absolute.