Allahabad High Court
Canara Bank vs Central Government Industrial ... on 27 July, 2000
Equivalent citations: 2000(4)AWC2858, [2000(86)FLR956], (2000)3UPLBEC2504
Author: D. K. Seth
Bench: D.K. Seth
JUDGMENT D. K. Seth, J.
1. The order dated October 27, 1997 passed in L.C.A. No. 1151 of 1997 by the presiding officer, Central Government Industrial Tribunal-cum-Labour Court, Kanpur has since been challenged in this writ petition. Mr. Tewari, learned counsel for the petitioner employer contends that the order allowing payment of back wages cannot be sustained since it had included payment at the rate at which the workmen would have been entitled to if he was reinstated with back wages in view of the qualified expression used in the award to the extent that "back wages at the rate at which lastly drawn." According to him, this will not include any increment nor any revision of pay neither any other components as are mentioned in Section 2(rr) of the industrial Disputes Act while defining the word "wages". According to him, the workman would not be entitled even to Dearness Allowance. He relies on the interpretation of the words "last drawn" of the Apex Court in the case of Dena Bank v. Kirti Kumar, 1992 (2) SCC 106.
2. Mr. Sudhanshu Dhuliya, learned counsel for the workmen respondents on the other hand contends that the interpretation of words "last drawn" given in the decision in the case of Dena Bank (supra), cannot be taken aid of when back wages are payable under an award. Inasmuch the provisions contained in Section 17B was enacted in a particular situation securing interim measure for a workman in favour of whom an order of reinstatement is passed and is subject to a proceeding challenging such reinstatement, as a condition for staying the order of reinstatement. This is in the form of subsistence allowance. Since in case the proceedings succeed, the amount paid to the workmen would not be recoverable and as such different meaning has since been given to this expression, which cannot be borrowed for the purpose of interpreting such an expression when used in the award. The right flowing from such an award is entitlement and not an interim measure for subsistence allowance and as such there is a broad distinction between these two situations on which the interpretation to the expression while dealing with Section 17B cannot be utilized for such purpose. He further contends that the decision in the case of Dena Bank (supra) has itself recognized the entitlement of the workmen under these two different situations. He had relied on the decision in the case of Dena Bank (supra) to substantiate his submission as well as on various other decisions, to which reference shall be made at appropriate stage. He has relied on the Law of Industrial Disputes, Volume II, Fifth Edition by Sri O. P. Malhotra at page 1434. On these grounds, he contends that the petitioner is entitled to back wages as defined in Section 2(rr) of the Industrial Disputes Act. Including all the components mentioned therein, as well as the revised wages, if revised in the meantime. He then contends that while reinstating the workman when the Tribunal awarded back wages, the expression 'lastly drawn' incorporated in the award is superfluous and redundant. This expression cannot be reconciled with the entitlement of back wages pursuant to an order of reinstatement in the award. Therefore, the petitioner is entitled to full back wages, which will include all components of wages, as well as the increment and revision in wages as if the workman was in service for the period during which he was prevented from working by reason of proceedings since culminating in the setting aside of the termination reinstating the workman. On these grounds, he prays that this petition should be dismissed.
3. I have heard both the learned counsel at length.
4. In order to appreciate with the situation, it would be necessary to briefly refer to the facts of this case. There was an industrial dispute between the petitioner-employer and the workman-respondent. The said dispute travelled to the High Court through writ proceedings in the form of challenge thrown to the award. The High Court, however, had remanded the case after setting aside the award dated October 25, 1991 passed in Adjudication Case No. 179 of 1988. Upon such remand, a fresh award was passed on January 2, 1996. In the said award January 2, 1996, the concluding part was as follows :
"As such my award is that the action of the management of Canara Bank in dismissing the concerned workman from services of the Bank is not justified. He is also entitled for back wages at the rate at which he had lastly drawn his wages."
This award has since not been challenged by the employer. It was also not questioned by the workman. Pursuant to the award, the workman has since been reinstated. So far as payment of wages after reinstatement is concerned, it is not being disputed. The employer paid back wages at the rate at which the workmen had drawn on the date of termination without Dearness Allowance and other components. Therefore, the workmen had filed an application under Section 33C(2) for releasing the difference according to his calculation. This application was registered as L.C.A. No. 15 of 1997. By an order dated October 27. 1997 since impugned in this petition, the labour court had allowed the application in part by directing recovery of the entire amount claimed less the House Rent Allowance. This order has since been challenged in this petition as referred to above.
5. Thus on facts of this case, the point for determination is confined to the interpretation of the expression 'back wages' at the rate at which he had lastly drawn his wages', whether this will include Dearness Allowance, increments, revision of pay and all other components as are mentioned in the definition of word "wages" in Section 2(rr) of the Industrial Disputes Act or not.
6. In order to interpret the expression 'wages last drawn' in reference to the implementation of an award cannot be interpreted in the same manner as it can be Interpreted when it is used in reference to a proceeding under Section 17B. Inasmuch as there is a marked difference in the entitlement of the workmen flowing from an award and those under Section 17B. In other words, the entitlement flowing from an award is the right legally accrued to the petitioner independent of any intervention of Court on the basis of the award itself, which is capable of execution- it does not depend on the discretion of the Court or otherwise. Whereas Section 17B is by way of interim measure pending adjudication of a proceeding arising out of an award reinstating a workman as a condition for staying reinstatement. As rightly contended by Mr. Dhuliya, the amount paid under Section 17B is in the form of subsistence allowance paid to the workman, which may not be an entitlement to him if the award is set aside. But still then the amount paid under Section 17B cannot be recovered. Thus it stands altogether on a different footing. In that view of the matter, the interpretation as has been given in relation to Section 17B cannot be borrowed in order to interpret the same expression appearing in the award. This distinction has also been recognized in the case of Dena Bank (supra) by the Apex Court. Paragraph 20 of the said decision makes a distinction between these two situations while it Interprets "full wages last drawn". If interpreted to mean full wages which could have been drawn, would result into giving an extended meaning which does not find support in the language of Section 17B. The payment under Section 17B is an interim measure instead of giving effect the award. By reason of Section 17B while staying an implementation of the award, an interim measure is permitted. If the expression 'full wages' in Section 17B is interpreted with a different meaning, in that event it will be amounting to implementing the award which is being stayed by the High Court, namely, entitling the workmen to receive full wages as he would have been entitled if he continued in service. This distinction may be noted even from the observations made in paragraphs 21 and 24 thereof respectively.
7. In paragraph 24, the Apex Court observed that the direction of the High Court by the learned single Judge since affirmed by the Division Bench for payment of wages as revised, including increments. Deamess Allowance etc. which are granted to all employees pursuant to Vth and VIth Bipartite settlement, cannot be upheld since it would amount to directing payment of wages which would have been drawn by the workman if he had been reinstated with full wages last drawn by him. Thus the Apex Court had made a clear distinction between the two situations, namely, entitlement under an award and those under Section 17B of the Act.
8. In that view of the matter, it is not possible to borrow the expression 'wages last drawn' given in the case of Dena Bank (supra) by the Apex Court in order to interpret the expression used in the award, which requires a determination by this Court.
9. Mr. Dhuliya had relied on the decision in the case of M/s. Continental Commercial Company u. State and others, 1998 (80) FLR 337. wherein the decision in the case of Dena Bank (supra) was followed in respect of a case arising out of Section 17B of the said Act in order to include the same distinction, which finds an expression in the concluding paragraph, where the Court had observed that if the petition of the workman was unconnected with Section 17B in that event the Court had a discretion to allow something more as available in terms of interpretation of words 'last pay drawn' under Section 17B in the case of Dena Bank (supra).
10. He had also relied on the decision in the case of Hindustan Wires Ltd. v. Janardan Kundu, 1997 (76) FLR 943, which interpreted it to mean that it would include Increment and Dearness Allowance, which might have accrued in the meantime. This decision was given prior to the decision in the case of Dena Bank (supra). Therefore, the said decision is no more a good law and the endeavour of Mr. Dhuliya to borrow the said interpretation for the purpose of his case may not be of any avail to us since the decision was in relation to proceedings under Section 17B, which as I have already held, cannot be relied upon for the purpose of interpretation of the expression with which we are now concerned.
11. Section 11A of the Industrial Disputes Act, prescribes the power of a Tribunal. The Tribunal is empowered by its award to "set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require,"
Thus it appears that the jurisdiction of the Tribunal is wide enough to attach any condition to the reinstatement as he may think fit. The power to reinstate is subject to the attachment of the conditions or terms according to the wisdom of the Tribunal. Mr. Dhuliya in his usual fairness has conceded to the proposition while reinstating, the Tribunal has jurisdiction to allow back wages, full or partial wages or it may allow reinstatement without back wages or may also allow reinstatement with a lump sum payment or make payment of lump sum in lieu of reinstatement. Mr. Tewari had also advanced similar contention. In fact the Tribunal has all these powers. The power of the Tribunal is not under any doubt.
12. But at the same time, Section 17B is applicable only when an award directing reinstatement of the workman is challenged in the High Court and then it makes the employer liable to pay the workmen during the pendency of such proceedings full wages last drawn. Thus Section 17B can be attracted only when an award reinstating a workman has been challenged. Then again this provision is dependent on the discretion of the Court to the extent that such an order is to be passed when an application is made to the Court establishing that during the period, the workman was not employed elsewhere. Thus it is an interim measure pending adjudication of the dispute before the High Court or Supreme Court. Thus it is completely distinct from the entitlement of the workman under an award, which was not by way of an interim measure but by way of entitlement. The relief under Section 17B is an interim measure pending enforcement of the award if the proceeding before the higher forum fails.
13. Therefore, in order to determine the question, it would be beneficial to refer to the definition of 'wages' given in Section 2(rr), which is as follows :
"wages means 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) any 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."
14. The wages Include all remuneration which are capable of being expressed in terms of money according to the terms of the employment expressed or implied. It also Includes such allowance, including Dearness Allowance to which the workmen may be entitled to for the time being and the value of house accommodation or supply of electricity, light, water, medical attendance and concessional supply of foodgrains and other articles. So far the other two components mentioned in the definition may not be relevant for our purpose.
15. Having regard to the said definition, the contention of Mr. Tiwari to the extent that Dearness Allowance cannot be included, appears to be wholly unsound. The wages payable under the award is to be interpreted in the same manner as defined in Section 2(rr) of the said Act and not otherwise.
16. Section 33(2) empowers the labour court to determine such amount as are payable under an award. It can enforce entitlement of the workman giving the very award. Mr. Tewari contended that since entitlement of the workman is disputed, therefore, the labour court in exercise of jurisdiction under Section 33C(2) cannot enter into such a dispute and decide the jurisdiction of the labour court. This contention also cannot be acceded to. Inasmuch under Section 33C(2), the labour court has to compute the entitlement of the workman flowing from the award. Whether the entitlement flows from the award or not is a question to be determined and as such can very well be gone into. If the labour court finds that the entitlement flows from the award, then it has jurisdiction to compute the same.
17. In the present case, the labour court has proceeded to compute the entitlement flowing from the award and as such the order is wholly within the jurisdiction. Therefore, the contention of Mr. Tewari is overruled.
18. Now let us examine as to whether the computation that has been made by the labour court could be Justified on the basis of the expression used in the award.
19. Having regard to the power conferred on the labour court under Section 11A, it appears that the labour court may pass any kind of orders, terms and conditions for reinstatement. It may award full back wages, it may award partial back wages. It may not award back wages while reinstating a workman. It may award a lump sum payment in lieu of reinstatement or in lieu of back wages allowing reinstatement. Thus when the labour court expressed some special reference as a term for reinstatement, the same has to be Interpreted according to the expression used, if the payment of back wages is qualified by any expression it has to be interpreted to the extent as Mr. Tewari had contended to qualify the payment of wages to the extent as it has qualified by the expression used. If the back wages is qualified by any expression, it cannot be said that it is superfluous or redundant. But at the same time, it has to be examined from the expression whether there is any apparent contradiction in the expression used or not. If there is a contradiction in that the one that is more beneficial to the workman is to be accepted and that which is lesser beneficial to the workman is to be discarded. In case the expression could have been full back wages last drawn was used. In that event definitely the contention of Mr. Dhuliya that the expression wages last drawn could have been superfluous and redundant and could not have been reconciled with the expression full wages but would mean that the back wages that would have been payable had the workman continued in service. The expression last drawn could not be reconciled with expression full back wages. As such the contention of Mr. Dhuliya could have some substance if such an expression is used. But if the expression used in the award is back wages last drawn, then perhaps it is not possible to accede to the contention of Mr. Dhuliya to the extent at which he had raised it. The labour court had qualified the back wages as a term and condition for reinstatement. This is to be interpreted according to the expression used in the award. The expression used in this award is back wages at the rate which he had last drawn. Therefore, the rate of wages is to be calculated at the rate at which the workman had drawn on the date of his termination. But the wages even though may be at that rate would Include all the components as are mentioned in Section 2(rr) of the said Act. No part of it could be excluded. The exclusion of House Rent Allowance in the course of computation, therefore, cannot be justified. The House Rent Allowance is also Inclusive to wages as defined in Section 2(rr). It includes Deamess Allowance and all components mentioned in Section 2(rr), which requires computation and is to be computed by the labour court. However, the question of payment of other amenity with regard to any concessional supply of foodgrains or other articles or other amenities, if there be any, which was not consumed by the workman during this period, may not be a factor for payment of equivalent of such amenities in course of such computation. But if the workman has consumed such amenities, in that event that cannot be adjusted against such payment or deducted or reduced to that extent from the payment that has to be made. If not consumed, in that event the equivalent cannot be excluded other than the amenities relating to supply of foodgrains etc. are concerned. So far as the House Rent Allowance or if the workman was occupying any accommodation and was still in occupation of such accommodation is concerned, he will be entitled to the reimbursement to the extent of supply of light, water or medical attendance as were available to the workman under the terms of employment if he had availed such benefits as are allowed to the workman under the rules. Increments may not he available but if the scale last drawn is revised, the revised rate may also be available and such revised rate of the last pay drawn would be available.
20. In that view of the matter, the writ petition is allowed accordingly.
The order impugned, namely, the order dated October 27. 1997 is hereby set aside. No cost. The learned labour court is hereby directed to compute the amount payable to the petitioner in the light of the observations made above within a period of three months from the date of receipt of a certified copy of this order. It would be open to the workmen to compute the amount and place it to the employer within three weeks from the date and in that event the employer may agree or certify the amount payable under such computation and may furnish details, if there is any difference, within a period of three weeks from the date of furnishing of the said statement and both the statements may be filed before the labour court in order to enable this Court to determine the question of computation. The labour court will decide the question according to its own wisdom and discretion having regard to the observations made hereinbefore.