Gujarat High Court
Bharat vs Airport on 11 March, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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MCA/354/2010 5/ 48 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR DIRECTION No. 354 of 2010
In
CIVIL APPLICATION No. 10657 of 2008
To
MISC.CIVIL
APPLICATION - FOR DIRECTION No. 379 of 2010
In
CIVIL APPLICATION No. 10682 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD Sd/-
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To be
referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ?
YES
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the civil judge ?
NO
=========================================================
BHARAT
H PARMAR - Applicant(s)
Versus
AIRPORT
AUTHORITY OF INDIA & 3 - Opponent(s)
=========================================================
Appearance
:
MRS
SANGEETA N PAHWA for
Applicant(s) : 1,
MR SV RAJU for Opponent(s) : 1,
None for
Opponent(s) : 2 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 11/03/2010
ORAL
JUDGMENT
1. Heard learned advocate Mrs. Sangeeta N. Pahwa appearing on behalf of applicants original respondents and learned advocate Mr. Chetan Pandya for learned senior advocate Mr. S.V. Raju appearing on behalf of opponent No.1 Airport Authority of India.
2. These applications are preferred by applicants supported with a prayer to direct the opponents to pay the benefits of Section 17B of the Industrial Disputes Act, 1947 ('ID Act' for short) from the date of award 14th June 2006 passed by Industrial Tribunal-cum-Labour Court. The following averments are made in paragraphs 2 to 4 of present application which are relevant and necessary to reproduce here, therefore, the same are reproduced as under :
2. The applicant states that the respondent herein had challenged the award dated 14.6.2006 passed by the Central Government of Industrial Tribunal Cum Labour Court at Ahmedabad by the above Special Civil application. The applicant states that this Honourable Court (Coram :
Honourable Mr. Justice H.K. Rathod) vide order dated 28.12.2007 had amitted the matter and had granted interim relief with condition that the petitioner is required to consider all the workmen for regular appointment in pursuance of the advertisement issued by the Airport Authority. It was also directed that the after result of selection it was open for the workmen to file application under Section 17(B) of the I.D. Act.
3. The applicant states that the applicant was thereafter, interviewed by the opponent authority and the applicant was not selected by the respondent. The applicant states that the applicant thereafter, filed an application under Section 17(B) of the I.D. Act vide Civil application No. 10657 / 2008. The applicant states that this Honourable court (Honourable Mr. Justice S.R. Brahmbhatt) vide order dated 25.9.2008 directed the opponent authority to comply the provision of Section 17(B) of the Act. Annexed hereto and marked as ANNEXURE 'B' is the copy of the order dated 25.9.2008. The applicant states that however, the Honourable Court has not specified that the applicant is entitled for the said benefit from the date of the award passedc by the Industrial Tribunal Cum Labour Court. The applicant states that since the Honourable Court has not specified the date of entitlement the respondent authority has not paid the arrears from the date of award as provided in Section 17(B) of the I.D. Act.
4. The respondent has started paying the benefit from the date of order passed by this Honourable Court but since there is no specific date is given though the applicant is entitled to the said benefits from the date of award the applicant is not being paid the said benefit. The applicant has therefore, come before this Honourable Court for appropriate direction.
3. Against present applications, affidavit-in-reply is filed by Officer of Opponent No.1 Mr. Kanaiyalal Agrawal, Assistant General Manager, Engineering Electrical, Air Port Authority of India at Ahmedabad. Following averments are made in reply in paragraph Nos. 3 to 7 which are quoted as under :
3. At the outset, I say that the benefit under Section 17-B of the Industrial Disputes Act, 1947 is available only to workmen in whose favour an award of reinstatement is passed by a Labour Court, Tribunal or National Tribunal and the employer prefers any proceedings against such award in a High Court or the Supreme Court wherein the workmen have filed affidavit of his not having been gainful employment during the period of discontinuation of the service. In other words, unless and until the workmen files an affidavit and declares that he is gainfully employed during the period of discontinuation from service, then only he is entitled to the benefit under Section 17-B of the Industrial Disputes Act, 1947.
I say that the applicant had filed an application with the Civil Application inter alia praying to have the benefit under Section 17-B of the Industrial Disputes Act, 1947. Therefore, the applicant cannot claim benefit under Section 17-B prior to the filing of the affidavit as required under the section.
4. With respect to para-1 of the application, I say that the respondent no.1 has complied the order passed by this Honourable Court.
5. With respect to para- 2 and 3 of the application, I say that section 17-B of the Industrial Disputes Act, 1947 itself is very clear with respect to the date from which the workmen is entitled to the benefit.
6. With respect to para-4 of the application, I deny that the applicant is entitled to the benefit under Section 17-B of the Industrial Disputes Act, 1947 from the date of the award. Since the applicant is not entitled for the same the applicant has not been paid.
7. With respect to para-5 of the application, I deny that the applicant is entitled for the benefit from the date of the award as per section 17-B of the Industrial Disputes Act, 1947. I say that the applicant be put to strict proof of the orders passed by this Honourable Court granting benefit under Section 17-B from the date of the award.
4. Learned advocate Mr. Pandya for learned senior advocate Mr. S.V. Raju appearing on behalf of respondents Nos.1 and 2 raised contentions in favour of respondent No.1 in support of their affidavit-in-reply that benefit of Section 17B is available to concerned workman from the date of on which affidavit of unemployment is filed for getting benefit under Section 17B and not entitled benefit of Section 17B of ID Act from date of award. The benefit which has been given by this Court vide order dated 25th September 2008 from that date benefits are paying by respondent to concerned workman. Except that, no other contention is raised by learned advocate Mr. Pandya before this Court.
5. Learned advocate Mr. Pandya relied upon Para 2 and 3 of decision of Apex Court in case of Uttaranchal Forest Development Corporation and Another v. K.B. Singh and Others reported in (2005) 11 SCC 449, which are quoted as under :
2. The benefit of Section 17-B of the Industrial Disputes Act, 1947 by directing reinstatement in service or payment of last wages drawn in lieu thereof can be granted only in favour of such workmen who have obtained awards in their favour from the Industrial Tribunal / Labour Court and in support of their claims filed affidavits. Learned counsel for the employer states that such workmen who had directly approached by writ petitions to the High Court for seeking relief of reinstatement, cannot be granted benefit of Section 17-B of the Industrial Disputes Act as there was no evidence before the Tribunal or the Labour Court about their non-employment or gainful employment elsewhere after discontinuance of their services.
3. After hearing learned counsel for the parties, we direct that only such workmen in whose favour there are awards of reinstatement and who have filed affidavits of their not being in gainful employment, shall be entitled to be granted reinstatement or in lieu thereof paid wages last drawn by them on respective dates of their terminations from services. Their entitlement for such wages would be from the respective dates by filing affidavits by each of such wages would be from the respective dates by filing affidavits by each of them in this Court in compliance with Section 17-B of the Industrial Disputes Act, 1947.
6. Learned advocate Mr. Pandya also relied upon decision of Apex Court in case of Hindustan Zinc Ltd. v. Industrial Tribunal and Another reported in (2001) 10 SCC 211.
The relevant order is quoted as under :
Challenging the award made by the Industrial Tribunal holding that the dismissal of the respondent workman was illegal and directing his reinstatement with continuity of service and full back wages and all other attending benefits, a writ petition was preferred. In the writ petition, learned Single Judge who disposed of the matter noticed that the Tribunal had upheld the validity of the enquiry ending with the termination of the service of Respondent no. 2. However, on merits, the High Court reached the conclusion that the charges/ allegations made against the workman concerned are not proved. The High Court without examining the contentions regarding the correctness of the conclusion reached by the Tribunal, firstly, as to the scope of interference when the validity of the domestic enquiry had been upheld and secondly, on merits of the matter decided the writ petition. The High Court noticed that the order made under Section 17-B of the Industrial Disputes Act, 1947, had not been complied with and therefore there was no necessity to go into the merits of the case. This conclusion is rather surprising. The High Court ought to have dealt with the merits of the case and decided the case but it went at a tangent and proceeded to dispose of the matter for non-compliance with the interim order made by the High Court and remit the matter back to the High Court for fresh consideration in accordance with law. Considering the fact that Respondent no.2 workman had been terminated from service as early as the year 1980, we hope the High Court will dispose of the matter as expeditiously as possible. The appeal is accordingly allowed. There will be no order as to costs.
7. Learned advocate Mr. Pandy further relied upon Para 25 of decision of Apex Court in case of Vivekanand Sethi v. Chairman, J & K Bank Limited and Others reported in (2005) 5 SCC 337, which is quoted as under :
25. Keeping in view the fact that we have ourselves considered the pleadings of the parties as also the materials on record, it is not necessary to remit the matter to the Tribunal as it would not serve any purpose.
So far as the appeal preferred by the workman is concerned, it is not necessary to entertain the same as it is evident that Section 17-B of the Industrial Disputes Act cannot now be applied in view of the fact that the workman did not file an affidavit before the learned Single Judge in support of his contentions and as required under law.
8. I have considered aforesaid decisions which have been relied upon by learned advocate Mr. Pandya. In none of the decision, the real issue has not been examined as to whether benefit under Sec.17B of ID Act can be granted with effect from date of award or not. In aforesaid decisions, which are based on facts of each case, but, there is no ratio decided in respect of question raised before this Court. Therefore, these three decisions which are relied upon by learned advocate Mr. Pandya are not applicable to the contentions raised by learned advocate Mrs. Sangeeta Pahwa.
9. Some history is necessary to be given by this Court that what happened to main Special Civil Application filed by respondent, therefore, the relevant history of the main matter is given hereunder.
10. On 28th December 2007 while issuing 'RULE' and granting ad-interim relief in terms of Para 8(b) on condition, because, at relevant time, some development was placed with respondent Airport Authority which requires fresh recruitment, for which, whether workmen concerned in dispute are eligible or not. For that, some necessary direction has been issued by this Court in Special Civil Application No.9783 of 2007 dated 28th December 2007. The said order is quoted as under :
1. Heard learned advocate Mr. Chetan Pandya for learned advocate Mr. S.V. Raju appearing on behalf of petitioner Airport Authority of India and learned advocate Mrs. Sangeeta Pahwa appearing on behalf of respondent Nos.1 and 2.
2. The petitioner authority challenged the award passed by Central Government of Industrial Tribuanl cum Labour Court at Ahmedabad dated 14th June 2006, wherein, the following order is passed :
1. I declare that the so-called contract arrangement through which the 30 workmen are employed are sham and bogus and also declare that the concerned 30 workmen are permanent workmen of AAI with effect from the date of award.
2. The said 30 workmen except Shri Muljibhai M. Khandvi at Sr.No.30 and Shri Raju V. Purani at Sr.No.14, be paid wages and be extended all service conditions of permanent workmen of the category they worked of AAI of and put them on minimum time scale of the category from the date of award.
3. The widow of Rajubhai Purani be paid a lump-sum compensation of Rs.75000/- and the widow of Shri Muljibhai Khandvi be paid a lump-sum compensation of Rs.1.0 lac within 60 days from the receipt of this award.
4. The demand regarding payment of full wages for forcibly idled period, treating them as they are worked all those days are hereby rejected.
5. The F.P. No.3 is not liable as he has taken contract on 1-12-1996. Thus F.P. No.3 is absolved from all the liabilities regarding concerned 30 workmen.
6. F.P. No.1 shall pay cost of Rs.5000/- to the workmen.
7. The order shall be implemented within 60 days of the receipt of this award.
3. During the course of adjudication, workman Shri Muljibhai M. Khandavi at Sr. No.30 and Shri Rajubhai V. Purani at Sr. No.14 were expired. The Tribunal has passed an award in favour of the following workmen. The names of workmen and date of joining according to Union as per demand raised by Union is quoted as under :
Sr.No. Name of Workman Date of Joining
1.
Mr. N.C. Das 1-10-1991
2. Mr. Bharat H. Parmar 1-12-1990
3. Mr. Amrut J. Vaghela 11-2-1992
4. Mr. Arvind H. Chawda 3-9-1990
5. Mr. Raju S. Paraswani 1-7-1990
6. Mr. Milan T. Trivedi 1-11-1991
7. Mr. Ashok C. Vaghela 6-7-1992
8. Mr. D.N. Sayed 3-11-1990
9. Mr. Narayan M. Parmar 1-7-1990
10. Mr. Baldev Parmar 11-12-1994
11. Mr. Prakash S. Ashodiya 11-2-1992
12. Mr. Narendra V. Parmar 11-11-1990
13. Mr. Amarsinh M. Chavda 1-2-1994
14. Mr. Raju V. Purani 1-3-1994
15. Mr. Ramesh S. Kirad 8-11-1990
16. Mr. Misrusingh D. Chauhan 1-7-1992
17. Mr. Naresh K. Bhil 1-7-1990
18. Mr. Rajesh G. Chauhan 18-11-1991
19. Mr. Rajesh C. Rathod 11-8-1993
20. Mr. Pinakin J. Pandiya 1-5-1992
21. Mr. Sanjay A. Rathod 23-8-1993
22. Mr. Manoj H. Parmar 1-2-1994
23. Mr. Jitendra K. Solanki 1-11-1994
24. Mr. Manilal Vaghela 1-2-1994
25. Mr. Jagdish H. Sandhu 1-11-1994
26. Mr. Kamlesh M. Solanki 1-10-1992
27. Mr. Ashok S. Srimali 18-11-1992
28. Mr. Ashish A. Mehta 1-11-1996
29. Mr. Kandapa Pandiya 1-8-1996
30. Mr. Muljibhia M. Khandvi 3-11-1990
4. Notice issued by this Court is served to respondents, but, respondent Nos.3 and 4 has not filed any appearance or no advocate is engaged by respondent Nos.3 and 4.
5. Civil Application No.11311 of 2007 is filed by respondent No.1 Union, where, following prayer is made in Para 7B :
7(B) : Your Lordships be pleased to stay the advertisement dtd.09.08.2007 qua 63 posts of Junior Attendant (Engineer Electrical) and further be pleased to direct the respondent authority to comply with the order dtd.14.06.2006 passed by Labour Court, Ahmedabad in Reference (CGITA) No.56/2004 before filing up any post of the Junior Attendant (Engineer Electrical) by way of direct recruitment, in the interest of justice.
6. According to respondent No.1 Union, the award passed by Tribunal in favour of concerned workmen is not implemented by the petitioner Airport Authority of India though there is a vacancies available with authority. According to respondent No.1 Union, the Airport Authority of India has advertised the post on 9th August 2007, where, out of three posts, the applications were invited from the eligible and qualified candidates for 63 post of Junior Attendant (Engineer Electrical) in the scale of Rs.4400-6920 on or before 27th August 2007. Out of 63 posts, there are 38 vacancies of General Category, 15 vacancies of OBC Category, 5 vacancies of Scheduled Caste Category and 5 vacancies of Scheduled Tribe Category.
7. Learned advocate Mr. Pandya submitted that this advertisement is in respect to covering the entire Western Region of Airport Authority of India which covers 26 Airports.
8. Learned advocate Mrs. Pahwa submitted that looking to the qualification and experience prescribed in the advertisement, the respondent workmen, those who are concerned in the award, are eligible and qualified to work for the post of Junior Attendant, but, she submitted that none of the workmen has filed application in response to the advertisement in time except one workman, because, having the reasonable apprehension in the mind of the workmen that in case, if, they applied to the post in question in response to the advertisement, then, their right, which was accrued in favour of workmen as per award, may be adversely affected in future if workmen may not be selected by Airport Authority.
9. Learned advocate Mr. Pandya submitted that after receiving the application from the concerned eligible candidates, interview has been fixed which remained continue upto 3rd January 2008. He also submitted that two questions may come in their way of the respondent workmen i.e. one is that the application is not filed in time and another is that age limit which is prescribed as 27 years maximum in the advertisement by the Airport Authority of India.
10. Learned advocate Mr. Pandya further submitted that respondents workmen are not entitled to be considered by Airport Authority because of delay and may be for age bar.
11. Learned advocate Mrs. Pahwa submitted that award passed by Tribunal directing the Airport Authority to absorb these all 30 workmen as a permanent employee being a direct employee of the Airport Authority. Therefore, she submitted that now, Airport Authority is having an opportunity to consider the case of respondents workmen those who have qualified and eligible, then, for such workmen, the relief granted by the Tribunal may not be required to implement, in case, if, such workmen are selected by the Authority. But, she submitted that for that, some suitable directions may be given to Airport Authority, so, they may consider the case of such workmen along with other candidates. However, she submitted that ultimately, after the direction of this Court, if, concerned workmen may be selected or may not be selected, but, their right, which has been accrued in their favour because of the award in question, may not be adversely affected at the time when the matter will be decided finally by this Court. She also submitted that the persons those who are not selected, for that, the workman concerned are entitled either absorption or if Airport Authority is not prepared to absorb them, then, they are entitled the benefit of Section 17B of the Industrial Disputes Act, 1947. She submitted that the amount of compensation which has been already granted by the Tribunal in favour of two widow of deceased workmen may be considered by this Court.
12. Learned advocate Mr. Pandya objected the said submission made by learned advocate Mrs. Pahwa, however, he submitted that in case, if, directions issued by this Court and implemented by the Airport Authority will not come in their way to challenge the award in question in the present petition or Airport Authority may not put in a disadvantage situation in respect to the challenge against the award in question as contention raised in petition by the Airport Authority. In short, his submission is that this Court may pass appropriate orders, but, without prejudice to the rights and contentions of the petitioner.
13. The affidavit-in-reply is filed by original petitioner against the Civil Application No.11311 of 2007.
14. I have considered the submissions made by both the learned advocates and I have also perused the award in question passed by Industrial Tribunal. I have also considered the averments made in Civil Application No.11311 of 2007 as well as averments made in affidavit-in-reply. At this stage, the anxiety of the Court is that opportunity is available to the workmen concerned as well as Airport Authority, if, they may consider the case of respondents concerned workmen, then, some extent, their future burden, if any, will be reduced and some heart burning between the parties may also subsidies upto some extent. Ultimately, question of industrial peace is to be kept in mind and while keeping all these aspects when process of selection is going on for the process of Junior Attendant (Engineer Electrical) if suitable direction is issued to Airport Authority to consider the case of concerned respondents workmen though time limit is over without raising objection against age bar, if any, then, it will meet the end of justice between the parties, so long, matter is decided finally by this Court.
15. Therefore, the question involved in the present petition requires detailed examination.
16. Hence, RULE.
17. Ad-interim relief in terms of Para 8(b) on condition that concerned all the respondents workmen shall have to give an application to Airport Authority of India for the post of Junior Attendant (Engineer Electrical) on or before 1st January 2008 to the concerned officer i.e. The Regional Executive Director, Airport Authority of India, Western Region, Mumbai Air Port, Mumbai. The applications of concerned workmen to be collected by the representative of respondent Union and he has to handover the bunch of such applications of concerned workmen to the aforesaid authority personally.
18. After receiving the applications from the Union representative by the aforesaid Authority, the Authority shall have to fix the oral interview of the concerned workmen giving detail information to the Union representative and accordingly, concerned workmen shall have to remain present for oral interview before the concerned authority who has to be specified by the aforesaid Authority. The concerned workmen shall have to give all the details in their applications as per advertisement along with their experience certificate if any.
19. It is also directed to petitioner - Airport Authority that if some technical breach is there, then, at this stage, they may be condoned subject to fulfill by the concerned workmen subsequently, but, aforesaid Authority must have to take the interview of all the concerned workmen respondent those who have given application as per direction of this Court.
20. It is made clear that without prejudice to the rights and contentions of both the respective parties, this direction has been issued by this Court and non selection or selection of any concerned workmen will not be adversely affected their right which has been accrued in their favour as per award in question.
21. The aforesaid direction is issued by this Court to see that the concerned workmen those who possess working experience of such kind of work may be utilized by the petitioner Airport Authority of India.
22. It is clear and kept open for respondent No.1 Union that after the result of selection, the concerned employees those who have remained unemployed, they may file appropriate application as required under Section 17B of the Industrial Disputes Act, 1947 as legally they are entitled for it.
23. This Court will also consider the case of two widow of deceased workmen along with application of Section 17B of the Industrial Disputes Act, 1947, where, compensation is awarded by the Tribunal, means, their question is kept open. For that, respondent Union will have to file proper application.
24. Direct service is permitted today.
11. In aforesaid order, it was made clear by this Court that this order has been passed by this Court without prejudice to the rights and contentions of both respective parties and right of workmen will not be adversely affected which has been accrued in their favour as per award in question. This Court has also made it clear and kept open for respondent No.1 Union that after the result of selection, the concerned employees those who have remained unemployed, they may file appropriate application as required under Sec.17B of ID Act as legally they are entitled for it.
12. Thereafter, Civil Application Nos.10657 of 2008 to 10782 of 2008 have been preferred by applicants claiming the relief from respondent under Sec.17B. In support of claim of benefit under Sec.17B, each workman has filed affidavit of unemployment along with civil application Annexure 'B' Page 15 of that civil application. After considering affidavits of unemployment filed by each workman that they remained unemployed and not gainfully employed elsewhere from the date of award 14th June 2006 till date on which affidavits filed by workmen on 4th September 2008. No counter is filed by respondent against aforesaid affidavits filed by each workmen on 4th September 2008. There is no affidavit filed by respondent original petitioner making positive case against workmen that workmen are gainfully employed from date of award.
13. In light of these pleadings between the parties, following order has been passed in Civil Application Nos.10657 of 2008 to 10782 of 2008 on 25th September 2008. The said order is quoted as under :
1. Rule.
Mr. Pandya, learned counsel waives service of Rule behalf of respondent No. 1. By consent, Rule is fixed forthwith.
2. The workmen have filed these applications for seeking compliance with provisions of Section 17-B of the I.D. Act.
3. The respondent could not controvert the averments made in these applications as the Award impugned is challenged in Special Civil Application No. 9783 of 2007.
4. The applications deserve to be allowed and are accordingly allowed. The respondent No. 1 is directed to comply with the provisions of Section 17-B of the ID Act. The applications stand disposed of. Rule is made absolute to the aforesaid extent in each matter.
5. Registry is directed to keep copy of this order in each matter.
14. In aforesaid order passed by this Court, respondent No.1 is directed to comply with provisions of Sec.17B of ID Act and on that basis, applications stand disposed of and rule is made absolute to aforesaid extent in each matter. Therefore, question arose that from which date, workman is entitled the benefit of Sec.17B of ID Act ? This order has been understood and implemented by respondent No.1 Airport Authority of India giving last drawn wages to workmen w.e.f. 25th September 2008.
15. Therefore, present applications are preferred by applicants claiming benefit under Sec.17B of ID Act from date of award. The present applications have been opposed by Opponent No.1 herein - Airport Authority of India filing affidavit-in-reply as referred above, but, in affidavit-in-reply, averments are not made in respect of gainful employment of workmen. So, Respondent No.1 has accepted the unemployment of applicants from date of award till date on which the order is passed by this Court on 25th September 2008. Therefore, applicants workmen remained unemployed from date of award. That facts have not been disputed by Opponent No.1.
16. In light of this background, question is whether order passed by this Court on 25th September 2008 granting benefit under Sec.17B of ID Act in favour of applicants while directing Opponent No.1 Airport Authority of India to comply it, then, applicants are entitled such benefits from date of award.
17. The aforesaid aspect has been considered by this Court in detail in case of Mafatlal S. Patel v. Blindmen's Association reported in 2006(2) GLH 624.
The relevant Para 7 and 8 are quoted as under :
7. However, in light of this background, the contentions raised in the reply by the original petitioner cannot be accepted that the application is filed by the respondent workman at a belated stage. In light of these facts, when respondent workman has not received notice of rule and ad-interim order till date from this Court, then, there is no delay on the part of respondent workman in filing present Civil Application under Section 17B of the I.D.Act. The 17B Application is required to be filed by the workman a moment he received the notice and stay order from this Court against the implementation of award. But, till date workman has not received any notice of rule and stay from this Court. Therefore, present application is well within time and, therefore, it is maintainable. The averments made by the workman in Para.4 and 5 that he remained unemployed during the interim period from date of award and not gainfully employed. There is no positive evidence produced by employer in reply that workman is gainfully employed in any establishment. Therefore, in absence of such evidence from employer, the workman is entitled the benefit under Section 17B of the I.D.Act,1947. The relief of Section 17B can be granted by the Court not from the date of petition, not from the date of order passed by this Court, not from the date of application filed by the workman, but it should have to be granted from the date of award.
This aspect has been examined by a Division Bench of Delhi High Court in case of Indra Perfumery Co. Thro'. Sudershab Oberoi v. Presiding Officer & Ors., reported in 2004 II CLR 760. Para.2, 8, 9, 10 and 13 of the said decision are quoted as under:
"2.
The issue involved is as to from which date workman would be entitled to receive wages under Section 17-B of the Industrial Disputes Act (hereinafter referred as "the Act" namely, whether from the date of award or from the date, writ petition is filed in this Court. Section 17-B of the Act reads as under :
`Payment of full wages to workman pending proceedings in 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 proceedings 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 been 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 such 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.'
8.
No doubt, the language of Section 17-B of the Act particularly, the words `during the period of pendency of proceedings in the High Court' gives an impression that order regarding payment has to be made for the period when proceedings were pending in this Court. However, in the case of Regional Authority, Dena Bank and Another v. Ghanshyam, reported in IV (2001) SLT 392 = JT 2001 (Supp.1) SC 229, wherein the Apex Court had examined this question in paras 7, 8 and 9. Considering the statement and objects and reasons for inserting the said provision and to mitigate the hardship that would be caused to delay in implementation of the award, the Apex Court pointed out that it was proposed to provide the payment of wages last drawn by the workman concerned from the date of the award till the disputes between the parties finally decided either in the High Court or the Supreme Court. It may be noted that after the award is made by the competent Forum, it becomes the bounden duty of the employer, either to take back the workman in service as per the directions made by the Court or to pay the wages. It is keeping this aspect in mind, Section 17B, came to be inserted. After the ward is made, this Court is of the opinion that unless the stay is granted by the Court, it is the duty of the employer to implement the award and the moment he challenges, it becomes his bounden duty to follow the mandate of Section 17B, when there is an affidavit filed by the workman that he was not gainfully employed, as indicated in Section 17B of the Act.
9. We may observe that the Apex Court in the case of Dena Bank (supra), was not directly examining the issue namely whether the order under Section 17B can be made from the date of the award or from the date of the filing of the writ petition. However, we note from paras 7, 8 and 9 of the judgment that the Court has indicated that such payment is to be made from the date of the award.
10. The Court is examining the legislation, which is a welfare legislation. The Labour Court on arriving at a conclusion that dismissal / termination is illegal, has to direct reinstatement of the workman with full back wages. In the instant case, in view of the order the workman was entitled to not only the back wages, but was also entitled to get current wages, unless he had refused to work. If the employer, instead of reinstating the workman, challenges the award and obtains stay order, the workman will not get the benefit of the order which ought to flow from the date of the order. It is in view of this, when an order is made by the Labour Court, the benefit must flow from the date of the order passed. Section 17B of the Act protects both the sides during the pendency of the proceedings in the High Court and if the proceedings are not pending, then the workman cannot be denied the benefit of the order made by the Labour Court. It is in view of this, it would be just and proper to say that the workman is entitled to get the benefit of the order from the date of the passing of the order.
13. From the reading of Section 17B, it becomes clear that the employer shall be liable to pay such workman "during the period of pendency of the proceedings in the High Court", full wages last drawn by him, inclusive of any maintenance allowances, etc. as indicated in Section 17B of the Act. No doubt, an affidavit by such workman is required to be filed that the workman had not been employed in any establishment during the period. In the instant case, affidavits have been filed by both the workmen."
8. In view of the observations made by the Division Bench of Delhi High Court that benefit of Section 17B will be available to the workman from date of award and not from any other date. This legal position has been made clear by Division Bench of Delhi High Court. However, considering the fact that Labour Court in Recovery Application granted the wages upto 30.6.2002 in favour of respondent workman, therefore, according to my opinion, respondent workman is entitled the benefit of Section 17B of the I.D.Act,1947 w.e.f. 1.7.2002 onwards till the main SCA is finally decided by this Court. Accordingly, it is directed to original petitioner to pay last drawn wages inclusive of any maintenance allowance available to the workman under the Service Rules w.e.f. 1.7.2002 to 30.6.2006 within a period of one month from the date of receiving the copy of this order. It is further directed to the original petitioner to pay regularly last drawn wages under Section 17B of the I.D.Act,1947 to the respondent workman till the main SCA is finally decided by this Court. Registry to verify, whether the writ of this Court has been served to the respondent or not and why the effective steps have not been taken by the department when notice of rule is not served to the respondent. The responsible officer should have to explain in writing to that effect and explain the lapse, if any, on the part of the Department.
18. The Hon'ble Division Bench of Delhi High Court (Coram : Mr. B.C. Patel, Chief Justice and Mr. Justice Sanjay Kishan Kaul) has examined very issue in case of Ashok Hotel v. Government of NCT of Delhi and Others reported in 2006-I LLJ 317.
The relevant discussions are made in Para 5 to 10, which are quoted as under :
5. Learned counsel appearing for the appellant/ employer has contended that in view of language of Section 17-B of the said Act the Workman is entitled at the most to get last drawn wages from the date on which the Court passed an order. Section 17-B of the said Act reads as under:
Section 17-B. Payment of full wages to workman pending proceedings in 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 proceedings 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 been 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 such 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.
6. This question was considered by Single Judges of this Court and in view of conflicting opinions expressed by them, the matter was referred to a larger Bench in the case of Indra Perfumery Co. Vs. Presiding Officer & Ors., 2004-II-LLJ-413 (Del-DB), wherein the Court after examining the provisions contained in the Act, the policy and the decision of the Apex Court and following the decision of the Apex Court in Regional Authority, Dena Bank Vs. Chanshyam AIR 2001 SC 2270 : 2001 (5) SCC, shall be liable to pay workman during the period of pendency of the proceedings in the High Court full wages last drawn by him inclusive of any maintenance allowance etc., as indicated in Section 17-B of the Act and that too from the date of the award.
7. Learned counsel for the appellant drew our attention to the decision of Division Bench of this Court in the case of Fouress Engineering (1) Pvt. Ltd. Vs. Delhi Administration & Ors., reported in 1992
-I-LLJ-710. In para 9 of the judgment the Division Bench took the view as under at P. 712:
9.
From a perusal of the above passage, it may appear that even for back wages Section 17-B makes a provision. However, as already considered above, Section 17-B does not deal with the period prior to the preferring of proceedings before High Court or Supreme Court.
8. It is in view of this, learned counsel submitted that this judgment was not brought to the notice of the Division Bench while deciding the issue in the case of Indra Perfumery Co. Case (supra). It is true that judgment was not pointed out to the Division Bench while disposing of the matter, nonetheless, fact remains that the Division Bench considered the Supreme Court judgment in Dena Bank Case (supra). It is also required to be noted that the decision of the Apex Court is subsequent to the decision of the Apex Court is subsequent to the decision of the Division Bench of this Court in Fouress Engineering (1) Pvt. Ltd. Case (supra). The Apex Court in Dena Bank case observed as under
2001-II-LLJ-252 at p. 254.
9. It may be noticed that Section 17-B of the Act does not preclude the High Courts or this Court under Articles 226 and 136 of the Constitution respectively from passing appropriate interlocutory orders, having regard to the facts and circumstances of the case, in the interests of justice (Dena Bank Case). The High Court or this Court may , while entertaining the employer's challenge to the award, in its discretion, in appropriate case, stay the operation of the award in its entirety or with regard to back wages only or in regard to reinstatement without interfering with payment of back wages or on payment of wages in future irrespective of the result of the proceedings before it, etc., and/or impose such conditions as to the payment of the salary as on the date of the order or a part of the back wages and its withdrawal by the workman as it may deem fit in the interests of justice. The Court may, depending on the facts of a case, direct payment of full wages last drawn under Section 17-B of the Act only by the employer to the workman. The question whether a workman is entitled to the full wages last drawn or full salary which he would be entitled to in the event of reinstatement which the award is under challenge in the High Courts or this Court depends upon the terms of the order passed by the Court, which has to be determined on interpretation of the order granting relief.
11. We have mentioned above that the import of Section 17-B admits of no doubt that parliament intended that the workman should get the last drawn wages from the date of the award till the challenge to the award is finally decided which is in accord with the Statement of objects and Reasons of the Industrial Disputes(Amendment) Act, 1982 by which Section 17-B was inserted in the Act. We have also pointed out above that Section 17-B doest not preclude the High Courts or this Court from granting better benefits more just and equitable on the facts of a case than contemplated by that provision to a workman. By an interim order the High Court did not grant relief in terms of Section 17-B, may, there is no reference to that section in the order of the High Court, therefore, in this case the question of payment of full wages last drawn to the respondent does not arise. In the light of the above discussion the power of the High Court to pass the impugned order cannot but be upheld so the respondent is entitled to his salary in terms of the said order. (emphasis supplied)
9. Thus it is very clear as pointed out by the Apex Court that while passing interlocutory orders the interest of both the parties are required to be considered. While protecting the interest of the employer the Apex Court directed that if more than the last drawn wages are to be paid then the amount is required to be protected by imposing some conditions with a view to see that the said excess amount can be recovered from the workman. No doubt learned Single Judge while deciding the application has not given such direction and the counsel for the workman has fairly conceded that such direction, if given, the workman could not have objected to the same. It is pointed out by the counsel for the workman that last drawn wages is more than minimum wages. If he is required to be paid wages more than last drawn wages, in the instant case, he will be reqjuired to furnish a personal bond in view of the observations made by the Apex Court in the case of Dena Bank Case (supra).
10. In so far as the issue of the relevant date from which the wages have to be paid, in view of the observations made in Dena Bank case (supra) relied upon in Indra Perfumery Co. case (supra),the date of the award which would be relevant date and not the date of filing of the proceedings in the High Court or the date of the order. The earlier judgment of the Division Bench in Fouress Engineering (1) Pvt. Ltd. Case (supra) cannot be said to hold water in view of the judgment of the Supreme Court in Dena Bank case (supra). Learned counsel for the appellant sought to contend that in Dena Bank case (supra), the Apex Court was not concerned with the issue of the date from which such amount is liable to be paid under Section 17-B of the said Act and the only issue was whether amount higher than the minimum wages could be granted.
19. The High Court of Delhi has examined the same issue in case of Sahara Airlines Ltd. v. Capt. R. Khosla reported in 2008 I CLR 474.
The relevant observation is made in Para 9, which is quoted as under
:
9. Under these circumstances, the applications are allowed. The petitioner management is directed to pay to the respondent the last drawn wages or the minimum wages whichever are higher, from the date of passing of the award till date. The arrears of wages shall be released to the respondent within four weeks. The petitioner management shall continue to pay to the respondent the last drawn wages or the minimum wages, whichever are higher, on a month to month basis, on or before the 7th day of each month. The petitioner management shall be at liberty to call the respondent to join duty without prejudice to the rights of either of the parties during the pendency of the present proceedings.
The respondent shall file an undertaking giving his current address, with an advance copy to the counsel for the petitioner management, undertaking therein to restitute the petitioner management, by paying the difference between the last drawn wages and the minimum wages, in case the petitioner management ultimately succeeds in the writ petition.
20. In view of aforesaid observations made by Apex Court as well as other High Courts while considering object and reasons of Sec.17B of ID Act, 1947, in terms, held that benefit under Sec.17B of ID Act, 1947 is to be given from date of award provided that affidavit to that effect of unemployment or not gainful employment is required to be filed by workman.
If affidavit of workman is not controverted and employer has not come out with a case that workman is gainfully employed, then, in such circumstances, it is a duty of employer to pay last drawn wages as required under Sec.17B of ID Act, 1947 from date of award.
21. This aspect has been considered by our High Court as well as other High Court as under :
In case of Hindustan Carbide Private Limited v. National Capital Territory of Delhi and Others reported in 2002 I LLJ 268 (Delhi).
In case of Dasrathsinh Lalubha Zala v. Gujarat Electricity Board reported in 2008 (5) GLR 4024.
In case of Chemical Mazdoor Panchayat v. Krishak Bharti Co-operative Limited & Others reported in 2008(5) GLR 4051.
In case of Gopalbhai Meghjibhai Kantia v.
Superintending Engineer reported in 2009 II LLJ 225 (Gujarat).
22. In view of aforesaid decisions which have been considered by this Court with an object and reasons of Sec.17B of ID Act and also considering decision of Apex Court as referred above as well as Division Bench of Delhi High Court, it is clear that benefit of Section 17B of ID Act, 1947 is applicable/available to workman from date of award not from date of affidavit as contended by learned advocate Mr. Chetan Pandya. The decisions which have been relied upon by learned advocate Mr. Pandya where such question has not been examined at all by Apex Court in three decisions as referred above. The ratio laid down by Apex Court is binding as a precedent to this Court, but, decisions on facts depend upon each case is not binding to this Court.
23. Apart from that, affidavit of unemployment is filed by each applicant on 4th September 2008. This Court has passed an order on 28th December 2007 not granted immediately the relief of Sec.17B of ID Act, 1947, because, case of concerned workmen are likely to be considered by Opponent No.1 Airport Authority of India, therefore, at relevant time, it was not proper to grant relief in favour of workmen as required under Sec.17B of ID Act, 1947, because, it was under consideration of Opponent No.1 Airport Authority of India the case of applicants for recruitment/reinstatement. So, just to keep a good and healthy atmosphere between the parties, this Court has kept open the right of workmen to claim benefit under Sec.17B of ID Act, 1947, in case, the exercise as suggested in order dated 28th December 2007 became failure.
24. It is also necessary to note that award passed by Central Government of Industrial Tribunal-cum-Labour Court at Ahmedabad dated 14th June 2006 and Special Civil Application filed by Airport Authority of India on 4th April 2007, therefore, pendency of proceedings start from 4th April 2007. Therefore, according to my opinion, order passed by this Court in Civil Application Nos.10657 of 2008 to 10782 of 2008 dated 25th September 2008 with a direction to Opponent No.1 to comply with provisions of Sec.17B of ID Act, 1947, it must have to be complied by Airport Authority of India from date of award 14th June 2006. The affidavit of each applicant workman is filed on 4th September 2008 where clear averments were made on affidavit that applicants are not gainfully employed elsewhere from the date of award 14th June 2006 which averments remained unchallenged as there is no positive case has been pointed out by filing affidavit from Opponent No.1 that applicants were gainfully employed from date of award. Therefore, according to my opinion, applicants are entitled 17B benefit from date of award 14th June 2006 and Opponent No.1 is required to pay last drawn wages to each applicant w.e.f. 14th June 2006 till the date on which payment of last drawn wages has been made by Opponent No.1.
25. The award passed by Labour Court is required to be published by appropriate Government under Sec.17A of ID Act, 1947. The award of reinstatement with back wages or without back wages is enforceable after a period of 30 days from date of publication. Therefore, it is a duty of employer that employer must have to implement the award passed by Labour Court after 30 days from date of publication and workman is entitled the reinstatement as a matter of right and in absence of reinstatement entitled full current wages from employer. The said award if it is challenged after six months, 12 months or two years, during that period, workman is entitled full current wages from employer because in between there is no stay obtained by employer from High Court. So, in case of delayed petition filed by employer and thereafter to obtain interim relief against reinstatement, then, that interim relief operates either from the date on which it has been granted or if it is operated from date on which award becomes enforceable, so, in both situation, either way, employer has to pay wages to workman from date of award. The difference is that period prior to obtain stay, workman is entitled full current wages from employer and after obtaining stay, workman is entitled last drawn wages provided workman is not gainfully employed and to that effect, affidavit is filed. Therefore, the very object and reasons of introducing Sec.17B of ID Act, 1947, so, workman would get at least last drawn wages from date of award, because, either way, once award becomes enforceable, then, it is a duty of employer to pay wages to workman or to reinstate workman in service. So, the period prior to obtain stay and period subsequent to obtain stay, but, in both cases, workman is entitled wages from employer. Therefore, it makes no difference if the effect of Sec.17B of ID Act, 1947 is to be given from date of award, because, otherwise also, under the provisions of Sec.17A, award becomes enforceable in 30 days from date of publication. By introducing provision of Sec.17B of ID Act, 1947 which is a beneficiary legislation which cannot be understood contrary to object and reason, for which, Section has been enacted in ID Act, 1947 which can deny wages to workman by interpreting it that workman is entitled last drawn wages from date of petition, from date of affidavit or from date of order passed by High Court. Therefore, such interpretation basically contrary to scheme of Industrial Disputes Act, 1947. If the aforesaid interpretation is to be accepted that last drawn wages is available to workman from date of petition, date of affidavit or date of order, then, statutory effect which has been given to award under Sec.17A that award becomes enforceable within 30 days from date of publication, becomes nugatory. Such interpretation cannot be accepted as contended by learned advocate Mr. Chetan Pandya and therefore, according to my opinion, applicants workmen are entitled last drawn wages from date of award.
26. The said aspect has been rightly considered by Apex Court in case of Regional Authority, Dena Bank & Anr. v.
Ghanshyam reported in JT 2001 (Suppl. 1) SC 229, wherein, the Apex Court has observed in Para 7, 8 and 9, which are quoted as under :
7. Section 17-B which is inserted in the Act by the Industrial Disputes (Amendment) Act, 1982, reads as follows :
17-B. Payment of full wages to workman pending proceedings in 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 proceedings 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 been 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 such 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.
8. Section 17-B provides that where the employer prefers any proceeding against an Award directing reinstatement of any workman, the employer shall be liable to pay such workman, during the period of pendency of such proceedings 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 been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such court. The proviso says that if the High Court or the Supreme Court is satisfied that the workman had been employed and had been receiving adequate remuneration during such period or part thereof, the Court shall order that no wages shall be payable under that Section for such period or part, as the case may be.
9. The statement of Objects and Reasons for inserting the said provision indicates that when labour courts pass Awards of reinstatement, they are often contested by employers in the Supreme Court and High Courts. To mitigate the hardship that would be caused due to delay in implementation of the Award, it was proposed to provide for payment of wages last drawn by the workman concerned from the date of the Award till the dispute between the parties is finally decided in the High Courts or the Supreme Court.
It follows that in the event of an employer not reinstating the workman and not seeking any interim relief in respect of the Award directing reinstatement of the workman or in a case where the Court is not inclined to stay such Award in toto the workman has two options either to initiate proceeding to enforce the Award or be content with receiving the full wages last drawn by him without prejudice to the result of the proceedings preferred by the employer against the Award till he is reinstated or proceedings are terminated in his favour, whichever is earlier. In Dena Bank's Case (Supra), this Court elucidated the expression full wages last drawn as follows :
The parliament though 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.
27. It is also necessary to note that in case of challenging award by employer and if there is stay, then, workman is entitled as a matter of right a reinstatement and current wages when award becomes enforceable. But, because of the stay, workman is entitled last drawn wages under Sec.17B of ID Act, 1947. Therefore, a moment this Court has granted stay, its having a retrospective effect that entire award has been stayed from the date on which it becomes enforceable. If, this interpretation is not to be considered rational, then, effect would be that from date of order passed by this Court, award of reinstatement is stayed on that date and for prior period, there was no stay, therefore, workman is entitled full current wages of prior period from date on which award becomes enforceable till the date on which interim stay against reinstatement granted by this Court. Therefore, just to avoid such complication, Apex Court has rightly interpreted it that last drawn wages is available to workman from date of award.
28. Accordingly, each application filed by applicants are allowed with a direction to Opponent No.1 Airport Authority of India to pay last drawn wages to each applicant from date of award 14th June 2006 till the date on which the payment of last drawn wages will be paid by Opponent No.1 to concerned applicants.
29. It is further directed to Opponent No.1 Airport Authority of India to pay the amount of arrears of last drawn wages from date of award till the payment of last drawn wages are made within a period of two months from date of receiving copy of present order.
30. Accordingly, prayer made in each applications is granted and present applications are allowed with no order as to costs.
Sd/-
[H.K. RATHOD, J.] #Dave Top