Calcutta High Court
Bata India Ltd. vs Seventh Indl. Tribunal And Ors. on 23 September, 1993
Equivalent citations: (1993)2CALLT386(HC), 1993(2)CHN464, 98CWN659, (1995)ILLJ144CAL
JUDGMENT Samaresh Banerjee. J.
1. The question which has come up for our determination is whether the workman concerned can maintain an application under Section 17B of the Industrial Disputes Act in a writ proceeding initiated by the employer challenging an order passed by the Industrial Tribunal under Section 33(2)(b) of the said Act refusing to accord approval to the dismissal of the workman concerned.
2. Concerned workman being the respondent in the writ petition was dismissed by the writ petitioner company by an order dated 26th of December, 1984 and on the same day an application was made under Section 33(2)(b) of the Industrial Disputes Act by the writ petitioner company before the 7th Industrial Tribunal, West Bengal for approval of such order. By an order dated September 20, 1988 Tribunal rejected the said application and refused to accord approval to such order of dismissal. On February 7, 1989 the petitioner company moved a writ application challenging the aforesaid order dated 20th September, 1988 of the said Tribunal whereupon a Civil Order was issued giving direction for affidavits. No interim order however was granted staying the operation of the afore-said order of the Tribunal. It appears that the said writ petition is still pending and has not been disposed of as yet. In the meantime the workman concerned also filed an application under Section 15(2) of the Payment of Wages Act before the concerned authority claiming his back wages. The said claim case still appears to be pending. The workman thereafter filed an application for interim relief in the said writ proceedings whereupon Hon'ble Mr. Justice Manoj Kumar Mukherjee by an order dated July 27, 1989 directed the company to make payment of the sum of Rs. 20,000/- to the workman by way of interim relief. The company preferred an appeal against the said order and by an order dated December 20, 1989 the Division Bench presided over by the Hon'ble Mr. Justice M.N. Roy as His Lordship then was stayed the aforesaid order subject to the company depositing the sum of Rs. 20,000/- with the Registrar, Appellate Side, of this Court with liberty to the workman to withdraw such amount upon giving proper undertaking to the satisfaction of the Registrar. The workman thereafter filed an application under Section 17B of the Industrial Disputes Act which was rejected after contested hearing by the Hon'ble Mr. Justice K.M. Ganguli by an order dated May 28, 1990 on the ground that the provision of Section 17B would not be applicable in the case under Section 33(2)(b) of the Industrial Disputes Act. The workman filed an application for review of the said order dated November 23, 1990 and the same was also rejected by an order dated November 23, 1990. The workman preferred an appeal against the aforesaid order being F.M.A.T. No. 3253 of 1990 and a Division Bench of this Court presided over by the Hon'ble Mr. N.P. Singh, Chief Justice, as His Lordship then was, allowed the appeal and sent the case back to the Trial Court for disposal of the aforesaid application filed by the workman under Section 17B of the said Act afresh after consideration of the Division Bench decision of this Court presided over by the Hon'ble Mr. Justice M.N. Roy in the case of Shiek Shamser Ali v. Kesorarn Industries (1988-I-LLJ-1), wherein it was held inter alia that an order made under Section 33(2)(b) of the said Act can be enforced by an application under Section 17B of the said Act.
3. Said application thereafter was heard by the Hon'ble Mr. Justice Paritosh Kumar Mukherjee and His Lordship after hearing the application by an order dated May 7, 1991 directed the matter to be placed before the Hon'ble Chief Justice for constituting a larger Bench for determining the said question.
4. Thereafter the aforesaid matter was assigned to another Division Bench but such Bench could not hear the matter. This has now been assigned to us.
5. A Division Bench of this Court presided over by the Hon'ble Mr. Justice M.N. Roy, as His Lordship then was, in the case of Sheikh Shamser Ali v. Kesoram Industries Cotton Mills Ltd. and Anr. (supra) has already held that Section 17B under Section 33(2)(b) of the Industrial Disputes Act can be enforced in an application under Section 17B of the said Act and after considering the said decision and after hearing both the parties we do not find any reason to differ from the said decision of the Division Bench.
6. We are unable to accept the submission of Mr. Ginwala that as in the case of disapproval of an order of dismissal of a workman by the Tribunal under Section 33(2)(b) of the Industrial Disputes Act the same makes the order of dismissal void ab-initio but does not amount to reinstatement of the workman concerned, the provision of Section 17B will not be applicable in such a case as there was no award directing reinstatement of the workman within the meaning of Section 17B of the said Act.
7. It is true, as pointed out by Mr. Ginwala, that the Supreme Court in the case of P.D. Sharma v. State Bank of India reported in (1969-I-LLJ-513) has held inter alia that if the approval under Section 33(2)(b) of the said Act is not accorded, the action taken by the employers becomes ab-initio void and the employee continues in service and his condition of service will also continue without any break as if the order in question had not been made at all. But in the said decision, where the Supreme Court had no occasion to consider the present issue before us but was considering the scope of Sub-section (2) and Sub-section (3) respectively of Section 33 of the Act and the difference between the two, in our view, does not stand in the way of extending the provisions of Section 17B of me Industrial Disputes Act to a case where the employer moves the High Court under Article 226 of the Constitution against an order passed by the Tribunal disapproving the order of dismissal of a workman under Section 33(2)(b) of the said Act
8. In our view, Section 17B of the said Act being a beneficial piece of legislation enacted for the welfare and protection of the weaker section of the community, a liberal rather than restricted interpretation of the said section is called for.
9. It is common knowledge that even before enactment of Section 17B, Courts were, in their discretion, awarding wages to workmen when they felt such a discretion is necessary. But the same was a discretionary remedy depending upon facts of the case. There are instances galore when the employer to tire out the workmen through lengthy litigation in the Court challenged the orders passed by the Tribunal in favour of the workman before the High Court and the Supreme Court taking advantage of laws delay and financial weakness of the workman. It is for the very purpose of ameliorating such hardship and the difficulties suffered by the workmen for endless litigations the legislature in its wisdom enacted Section 17B of the Industrial Disputes Act. Under such circumstances, if a restricted interpretation is given to Section 17B of the said Act and the benefit given to the workmen under such section is not extended to a case arising out of Section 33(2)(b) of the said Act, simply because disapproval by the Tribunal of the action of the employers does not strictly amount to reinstatement, the very purpose of the said section, which in effect has only codified the right of the workman to get his wages which he cannot get in time because of the long drawn process caused by the method employed by the management, may very often be defeated, as it is sought to be done in the instant case by the company which would be evident from the conduct of the company in not paying the wages to the workman (even after taking the legal stand that such order of disapproval of dismissal by the Tribunal does not amount to reinstatement but makes the order of dismissal void ab-initio), and the submission of the learned counsel of the company that the workman has his remedy for getting the wages before the authority under Payment of Wages Act.
10. We are supported by the decision of the Supreme Court in the case of Bharat Singh v. Management of New Delhi Tuberculosis Centre reported in (1986-II-LLJ-217), which has been cited by Mr. Ginwala in support of his contention. In our view that liberal interpretation should be given to said Section 17B. In the said case, the Supreme Court although had no occasion to decide the question involved before us, but while considering the question whether provisions of Section 17B of the said Act would be applicable even to awards passed prior to coming into operation of the said Section 17B Amending Act, was of the view that such section being a welfare legislation, liberal interpretation is to be given to the same and unless such liberal interpretation is given the very purpose of the said section would be defeated. As observed by the Supreme Court in the said case "In interpretation of statutes, Courts have steered clear of the rigid stand of looking into the words of the section alone but have attempted to make the object of the enactment effective and to render its benefits to the person in whose favour it is made. The legislators are entrusted with the task of only making laws. Interpretation has to come from the courts" (p.220)
11. In our view, if a liberal interpretation is given to Section 17B for the purpose of giving effect to the beneficial object which it seeks to achieve, there will be no difficulty in extending the benefit of the said section even in such a case where the employer challenges an order passed by the Tribunal disapproving an order of dismissal under Section 33(2)(b) of the Industrial Disputes Act in the High Court and the Supreme Court.
12. Although in case of such disapproval by the Tribunal under Section 33(2)(b) of the Industrial Disputes Act, Tribunal does not actually direct reinstatement in service, the real effect of such order is, in our view, amounts to reinstatement. 'Reinstatement' means as per 'WORDS AND PHRASES', Permanent Edition Volume 36 A, "To restore to a former state, authority or station". "To return to a fanner status". "To restore to a state from which one has been removed". As per BLACK'S LAW DICTIONARY 6th Edition, 'Reinstatement' means 'To reinstall, to reestablish, to place again in a former state, condition, or office, to restore to a state or position from which the object or person had been removed".
13. Under such circumstances, legal effect of disapproval under Section 33(2)(b) of the said Act by the Tribunal although may make the order of dismissal void ab-initio, as held by the Supreme Court in the case of P.D. Sharma v. State Bank of India and the workman concerned deems to continue in service, the same is really by a fiction of law. Factually and effectually, however, the workman concerned is restored back to the position which he held before the order of dismissal only after the order of such disapproval is passed by the Tribunal under aforesaid Section 33(2)(b) of the said Act and consequentially as a matter of right is entitled not only to all arrear wages and other benefits, but also is entitled to his salary month by month.
14. In that view of the matter we are unable to accept the submission of Mr. Ginwala that provision of 17B would not be applicable as there was no award directing reinstatement. The definition of Award and Industrial Disputes as it would appear from Section 2(b) and Section 2(k) of the said Act themselves, are of the widest amplitude. Award has been defined under Section 2(b) of the Act as an interim or final determination of any Industrial Disputes or of any question relating thereto of any Labour Court or Industrial Tribunal or National Industrial Tribunal and Industrial Disputes has been defined under Section 2(k) of the said Act as any disputes between the employers and employees or between the employees and workman and between the workman and employers which is connected with the employment or non-employment or with the terms of employment or with the conditions of labour of any persons. The decision of the Industrial Tribunal under Section 33(2)(b) of the Industrial Disputes Act disapproving the order of dismissal, is certainly a matter relating to employment or non-employment of the workman and is certainly a determination by the Tribunal in respect thereto. Such decision is certainly a determination that the dismissal in question is invalid and therefore cannot be approved. There is no reason therefore, as to why, giving a liberal interpretation to the provision of Section 17B of the said Act, such a decision of the Industrial Tribunal under Section 33(2)(b) of the said Act cannot be termed as an award within the meaning of Section 17B of the said Act.
15. Even if the provision of Section 17B of the said Act would not have been applicable in such a case, even then, in our view, the workman is entitled to all his arrear salaries and payment of further salaries month by month as a matter of right since in case of such disapproval of the order dismissal under Section 33(2)(b) of the said Act by a Tribunal, the workman, concerned deemed to continue in service and for the afore-said purpose it is not at all necessary for the workman to go before the authority under the Payment of Wages Act, but such salary can be claimed as a matter of right by .the workman concerned before the Court itself where the employer has challenged such order of disapproval of the Tribunal under Section 33(2)(b) of the said Act High Court therefore, in exercise of its wide jurisdiction which is invoked by the employer by making an application under Article 226 of the Constitution challenging such order of disapproval by the Tribunal passed under Section 33(2)(b) of the Industrial Disputes Act, is fully competent to direct payment of such wages of the workman concerned both arrear as well as current, whether an application has been made before the authority of Payment of Wages Act for recovery of such wages or not
16. In the view taken by us above, the workman is entitled to be paid all his arrear wages from the date of dismissal till date and is further entitled to be paid his wages month by month. The application is therefore disposed of. The writ petitioner company Bata India Ltd. is directed to pay the workman all his arrear wages, from the date of dismissal till date within four weeks from the date after adjustment of the amount of Rs. 20,000/- already paid to the petitioner by an order dated 27th July, 1989 passed in the writ application. The writ petitioner Company shall also go on paying his wages with effect from October, 1993 till the disposal of the writ petition.
17. There will be no order as to costs. Let a xerox copy of the operative portion of the order be handed over to the Learned Advocates of the parties on the undertaking to apply and obtain certified copy of the judgment and order.
18. I agree.
Prabir Kumar Majumdar, J.