Calcutta High Court
Hindustan Wires Limited vs Janardan Kundu on 9 January, 1997
Equivalent citations: (1998)ILLJ542CAL
JUDGMENT Samaresh Banerjea, J.
1. The present writ application has been heard at the admission stage along with the application made by the workman under Section 17B of the Industrial Disputes Act.
2. In the writ petition the petitioner has challenged the award dated July 8, 1996 passed by the First Industrial Tribunal holding that the termination of service of the workman concerned was illegal and unjustified and directing his reinstatement in service with continuity in service and back wages from May 1, 1989 till the date of joining.
3. The aforesaid award has been challenged by the petitioner company on several grounds. Apart from challenging the very legality of the reference made under Section 10 of the Industrial Disputes Act, it has also been contended inter alia that there has been a perversity in the findings in as much as admittedly the workman concerned underwent open heart surgery necessitating replacement of two valves and was unable to carry out the work assigned to him and for the aforesaid reasons he continued to be absent and in fact was unable to resume his duty which was not taken into consideration by the Tribunal. It has further been contended that the impugned order of termination was really a discharge simpliciter because of the inability of the workman to continue in service because of his serious ailments and it was not a dismissal from service and the same also did not amount to retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act.
4. Having heard the learned Advocate for the parties I am of the view that the writ application cannot be disposed of without affidavits. Let affidavit-in-opposition to the writ application be filed within two weeks from date, affida-vit-in-reply one week thereafter and let the matter appear as an application adjourned four weeks hence.
5. So far as the application under Section 17B of the Industrial Disputes Act is concerned the learned Advocate appearing for the workman apart from contending that under the provisions of Industrial Disputes Act because of such initiation of writ proceedings by the employer before the High Court challenging the order of reinstatement his client is entitled to pay last drawn under Section 17B of the said Act, it has further been contended relying on a number of judgments of different High Courts that pay last drawn means that the pay to which the workman is entitled on his reinstatement.
6. The learned Advocate appearing for the petitioner company on the other hand has opposed this application under Section 17B of the Act contending inter alia that the petitioner is not entitled to any amount as the workman after his termination of service was engaged in his brother's firm by the name of A.K. Industries having its place of business at 212, Raja Ram Chandra Chat Road, P.O.Panihati, 24 Parganas (North) and therefore it cannot be said that after his termination the workman was unemployed. It has also been contended on behalf of the petitioner company replying on certain decisions that last pay drawn would mean the pay which was last drawn by the workman concerned before his termination.
7. Having heard the learned Advocate for the parties at length on the application under Section 17B of the said Act I am of the view that the application is liable to be allowed.
8. The provisions as laid down under Section 17B of the said Act have been held to be mandatory by the Hon'ble Supreme Court. Under the aforesaid provisions where the 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 pendency of such proceedings in the High Court or the Supreme Court full wages last drawn by him.
9. In view of the aforesaid clear provisions of the statute the petitioner company cannot escape its liability to pay such amount. True, it has been provided under Section 17B of the said Act that such liability will arise if the workman had not been employed in any establishment during such period and an affidavit by such workman is to be filed to that effect. But in the instant case the petitioner has specifically averred by filing an affidavit that during the relevant period he was not employed. Although the petitioner company in its affidavit in opposition to such application alleged that the applicant is employed in his brother's firm, such allegation has been made absolutely in a vague manner without sufficient particulars in respect thereof. Such allegation has also been denied by the workman in his affidavit-in-reply (wrongly termed as affidavit-in-opposition) and he has even denied the very existence of such firm calling upon the company to prove its existence. I am therefore inclined to accept the claim of the workman that he was not employed during the relevant period and therefore the petitioner is liable to pay such amount.
10. Admittedly, the amount to which the petitioner will be entitled will have to be paid firm the date when the writ petition was filed and such position is not disputed by the parties. But the question which has arisen is what is the j meaning and scope of the expression "Last Pay Drawn .
11. A Division Bench of Bombay High Court in the case of Corona Sahu & Co. Ltd. v. Abdui Karim reported in (1994-I-LLJ-1100) while interpreting the aforesaid expression "full wages last drawn" has held that the same will mean the full wages which the workman was entitled to draw in pursuance of the award and the implementation of which is suspended during the pendency of the proceedings. It has been further held that although the aforesaid words connote past tense it is obvious that the proper construction of the Section is that the workman is entitled to the full wages which the workman would have been entitled to draw but for the pendency of the proceedings in this Court. It has been further held that the use of the expression "adequate remuneration" in the proviso of Section 17B of the Act while the use of the expression "full wages last drawn" in the principal body of the Section indicates that the Legislature only contemplated payment of adequate remuneration in cases where the workman had not been employed in any establishment. It has therefore been held that the words "full wages last drawn" would take into their fold wages drawn on the date of termination of service plus the yearly increment and the D. A. to be worked out till the date of the award.
12. The same is the view of three other High Courts. A Division Bench of High Court of Andhra Pradesh in the case of Management of Praga Tools Limited v. Chairman-Cum-Presiding Officer, Additional Industrial Tribunal-cum-Additional Labour Court, Hyderabad reported in 1996 I CLR 434 has also held that the aforesaid expression "full wages last drawn" means quantum of wages currently paid to a fresh recruit to a post held by concerned de-linquentemployee.
13. A Division Bench of Kerala High Court in the case of D. Venn and Ors. v. Senen Fernandez and Ors. reported in (1995-II-LLJ-1113) was also of the same view as of the Bombay and Andhra Pradesh High Courts. A Division Bench of Karnataka High Court in the case of Visveswarayya Iron & Steel Limited v. M. Chandrappa and Anr. reported in (1994-I-LLJ-555) while expressing the same view as of the Bombay and Andhra Pradesh High Courts was of the view that the same however will not include the revision of pay, if any, that might have been effected in the meantime.
14. It does not appear that any decision in this respect has been rendered by our High Court.
15. After considering the respective submissions of the parties and considering the aforesaid judgments of the said High Courts I am however inclined to accept the interpretation made by the Division Bench of Bombay High Court in respect of aforesaid expression "last wages drawn".
Admittedly, the Industrial Disputes Act is a social welfare legislation and therefore there is ample scope of interpreting the same in favour of the person for wnom such legislation was made. It will not be out of place to mention that the very Section 17B was brought into the parent Act of Industrial Disputes Act by way of amendment after in a number of cases the Hpn'ble Supreme Court deprecated the practice of the employers to tire out an employee by continuing the litigation from Court to Court making the workman helpless. Although Court in its discretion can always and has in fact in many cases directed payment to the workman during pendency of such proceedings a legislation in respect thereof was felt necessary and the aforesaid provision of Section 17B was brought about by the legislature in its wisdom obviously to aid such workman under such a situation so that he survives during the lengthy process of litigation. If the expression last wages drawn" is construed as wages which the workman drew just before his termination an anomalous situation adverse to the workman will arise. If the litigation before the High Court and from High Court to Hon'ble Supreme Court continues, the workman would be depriyed of the wages which he would have been entitled to draw if he would have been actually reinstated by the award although he will have to depend on the wages which he received before his termination which in the meantime because of lapse of several years because of pendency of the dispute before the Tribunal and thereafter before the High Court and the Supreme Court, has become grossly inadequate as a living wage because of the intervening price rise and inflation, which again is a stark reality. The result will be that the workman concerned although directed to be reinstated by the Tribunal will be thrown into a precarious economic condition and the very object of Section 17B of the Act will be frustrated. Section 17B of the said Act itself being a beneficial piece of legislation enacted for the welfare and protection of the weaker section of the society, a liberal and purposive interpretation rather than restricted and literal interpretation is called for so that the very purpose of such legislation is achieved and not defeated. In this connection 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) may be referred to where the Supreme Court interpreted the provisions of Section 17B of the Industrial Disputes Act. In the said case the Supreme Court 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 such Section, was of the view that such section being a welfare legislation liberal interpretation is to be given to such Section but for which the very purpose of the said Section would be defeated. The relevant observation of the Supreme Court in the said case is worth quoting hereunder: -
"It is common knowledge that even before Section 17B was enacted, Courts were, in their discretion, awarding wages to workmen when they felt such a direction was necessary but that was only a discretionary remedy depending upon Court to Court. Instances are legion where workmen have been dragged by the employers in endless litigation with preliminary objections and other technical pleas to tire them out. A fight between a workman and his employer is often times an unequal fight. The Legislature was thus aware that because of the long pendency of disputes in Tribunals and Courts, on account of the dilatory tactics adopted by the employer, workmen had suffered. It is against this background that the introduction of this Section has to be viewed and its effects considered."
"The Objects and Reasons for enacting the Section is as follows :-
"When Labour Courts pass awards of reinstatement, these are often contested by an employer in the Supreme Court and High Courts. It was felt that the delay in the implementation of the award causes hardship to the workman concerned. It was. therefore, proposed to provide the payment of wages last drawn by the workman concerned, under certain conditions, from the date of the award till the case is finally decided in the Supreme Court or High Courts."
"The Objects and Reasons give an insight into the background why this Section was introduced. Though Objects and Reasons cannot he the ultimate guide in interpretation of statutes, it often time aids in finding out what really persuaded the legislature to enact a particular provision. The Objects and Reasons here clearly spell out that delay in the implementation of the awards is due to the contests by the employer which consequently cause hardship to the workmen. If this is the object, then would it be in keeping with this object and consistent with the progressive social philosophy of our laws to deny to the workmen the benefits of this Section simply because the award was passed, for example just a day before the Section came into force. In our view it would be not only defeating the rights of the workman but going against the spirit of the enactment. A rigid interpretation of the Section as is attempted by the learned Counsel for the respondents would be rendering the workman worse off after the coming into force of this Section. This Section has in effect only codified the rights of the workmen to get their wages which they could not get in time because of the long drawn out process caused by the methods employed by the management. This Section, in other words, gives a mandate to the Courts to award wages if the conditions in the Sections are satisfied. "
"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 into 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...."
16. Such principle of law laid down by the Supreme Court is very much applicable in the instant case.
17. That apart the High Court in its direction can certainly direct payment during pendency of the proceeding.
18. I also accept the interpretation made by the Division Bench of the Bombay High Court, that reading of the proviso of Section 17B along with the main Section will indicate that the workman will be entitled to the amount which he last drew plus increment and D.A. which would accrue in the meantime.
19. Under the facts and circumstances of the case I am also of the view that although during the pendency of the proceedings the payment of arrear wages of the workman may be stayed, the petitioner must pay full wages to the workman month by month as admissible to a similar workman.
20. The application under Section 17B also stands allowed.
21. It is made clear that until further orders of this Court the petitioner company may not pay the arrear wages to which he is entitled by virtue of the award but the petitioner company shall go on, paying the workman month by month by the 1st day of the succeeding month the full wages to which he would have been entitled on the date of the award of his reinstatement, as admissible to similarly situated workmen. The petitioner company is directed to start paying the workman from February 1, 1997 for the month of January, 1997 and the arrear in respect of such wages for the period between October 15, 1996 when the writ petition was filed till December, 1996 shall be paid by the petitioner company within February 15, 1997.
22. Application under Section 17B is disposed of accordingly.
23. All parties are to act on a signed copy of the operative part of this judgment on the usual undertaking.