* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM No. 6623/2007 in WPC No. 10465/2004
Judgment reserved on: April 24, 2009
Judgment delivered on: 19.05.2009
%
Syndicate Bank ...... Petitioner
Through: Mr. Puneet Taneja, Advocate
Versus
Sanjay Kapoor ..... Respondents
Through: Mr. C. Hari Shankar, Advocate
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers Yes
may be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment Yes
Should be reported in the Digest?
KAILASH GAMBHIR, J.
*
1. The present application has been filed by the respondent workman under section 17-B of the Industrial Disputes Act for claiming benefits under the said section.
CM No.6623/2007 & WPC No.10465/2004 Page 1 of 16
2. The only objection taken by the petitioner Bank is that the application has been filed by the respondent workman on 4/5/2007 after the Writ Petition in which the present application has been filed has already been finally disposed of by this Court vide orders dated 3/11/2006.
3. The counsel for the applicant respondent contended that in view of the decisions in the following judgments, the application should be allowed:
1. Rajasthan State Road Transport Corporation vs. Labour Court - 1998 (1) LLJ 831 (Rajasthan);
2. DTC vs. Pratap Singh - 150 (2008) DLT 248 (Del);
3. Hans Raj Mahajan & Sons Pvt. Ltd. vs. Presiding Officer - 2001 (2) LLJ 1503 (P & H) (DB).
4. The counsel further urged that order of the Ld. Single Judge setting aside the award dated 23/2/2004 is under challenge in an LPA pending before the Hon'ble Division Bench and therefore, during the pendency of appeals, the relief claimed under S.17-B ID Act is still available to the applicant workman.
5. I have heard Ld. Counsel for the parties and perused the record. The following question of law need to be examined in the present case.
CM No.6623/2007 & WPC No.10465/2004 Page 2 of 16
"Whether application filed by the workmen under section 17B can be maintained not only during the pendency of writ petition but even after the final decision of the writ petition".
6. Before dealing with the rival contentions of the parties it would be relevant to reproduce the said provision, Section 17-B, of the I.D. Act, which is 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."
7. A perusal of the above provision would make it clear that when an award directing reinstatement is made by the Labour Court or Tribunal or National Tribunal and if that award is challenged in any proceedings in the High Court or Supreme Court this section makes it obligatory for the employer to pay the workman during the pendency CM No.6623/2007 & WPC No.10465/2004 Page 3 of 16 of the proceedings in the High Court or the Supreme Court full wages last drawn by him. The Phraseology of Section 17-B is very clear. It leaves no discretion of the court where proceedings are pending. The employee is required to pay the workman full wages last drawn by him during the pendency of the proceedings in High Court of Supreme Court.
8. Section, 17-B, relates to the period during which proceedings remain pending before the High Court or the Supreme Court, it does not take into account any period prior to the preferring of the proceedings in the High Court or the Supreme Court. During the pendency of proceedings, the employer is under obligation to pay full back wages last drawn by the employer.
9. Section 17-B of the ID Act confers valuable rights on the workmen and correspondingly imposes onerous duty on the employer. This is because, the Management's order of dismissal effects de facto termination of services and this is transformed into de jure character only once the approval is granted. If approval is declined, the immediate consequence is that even the de facto status is reversed and obliterated. The workman continues in service and it is open to CM No.6623/2007 & WPC No.10465/2004 Page 4 of 16 him to recover his wages and entitlement by pursuing the most convenient and expeditious legal recourse available to him. By passing the order of discharge or dismissal defacto the relationship of employer and employee may be ended but not the de jure relationship for that could happen only when the Tribunal accords its approval. The relationship of employer and employee is not legally terminated till approval of discharge or dismissal is given by the Tribunal. In a case where the Tribunal refuses to accord approval to the action taken by the employer and rejects the petition filed under Section 33(2)(b) of the Act on merits the employer is bound to treat the employee as continuing in service and give him all the consequential benefits. If the employer refuses to grant the benefits to the emplyee the latter is entitled to have his right enforced by filing a petition under Article 226 of the Constitution.
10. In Dena Bank v. Ghanshyam,(2001) 5 SCC 169, the Hon'ble Apex Court dealt in detail the object and purpose of the said provision, which is reproduced as under:
8. Section 17-B provides that where the employer prefers any proceedings 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 CM No.6623/2007 & WPC No.10465/2004 Page 5 of 16 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 proceedings 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 case1 this Court elucidated the expression "full wages last drawn" as follows: (SCC p.
115, para 21) "... Parliament thought 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‟."
10. 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 case1). The High Court or this Court may, while entertaining the employer‟s challenge to the award, in its discretion, in appropriate cases, stay the operation of the award in its entirety or in regard to back wages only or in regard to CM No.6623/2007 & WPC No.10465/2004 Page 6 of 16 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 while 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. The object of enacting Section 17-B is to give relief to the workman, who has award in his favour but due to pendency of proceedings before the High Court or Supreme Court, the order of reinstatement gets deferred and he is unable to reap the fruits of the award. Therefore, to relieve such a workman of undue hardships caused to him even when award is in his favour , Section 17-B, ID Act was enacted. Delay on the part of the employer to challenge the award without implementation of the award postpones right of the workman to reinstatement and therefore, the employer is liable under Section 17-B from the date of the award and not from the date of filing of petition in High Court or Supreme Court. The relevant consideration for passing an order under Section 17-B is that the workman had an order in his favour for reinstatement which has been stayed and the workman despite an order in his favour suffers unemployment. CM No.6623/2007 & WPC No.10465/2004 Page 7 of 16
12. The grant of benefits of S. 17-B, I.D. Act cannot be denied to a workman if all the ingredients of S. 17-B are satisfied. Delay also cannot defeat the right of the workman to claim benefits under S. 17-B, I.D. Act. However, provisions of Section 17-B, debars the workman from the benefit of Section 17-B wages, if such workman is able to secure employment and is receiving adequate remuneration for any period or part thereof during the pendency of proceedings before the High Court or Supreme Court. It cannot be thus forgotten that unreasonable and inexplicable delay on the part of the workman in moving the application under Section 17-B of the I.D. Act would deprive the employer to find the correct facts about the gainful employment of workman during that period and therefore grant of wages for such delayed period would be in negation of the right of the employer secured under the said proviso not to pay wages to a workman employed in some establishment and receiving adequate remuneration. At the same time, the workman would get the advantage of reaping double benefits of claiming Section 17-B wages from the employer even for that period during which he was gainfully employed.
CM No.6623/2007 & WPC No.10465/2004 Page 8 of 16
13. Further, granting relief under Section 17B of the Act and passing orders directing payment of wages last drawn, is generally the rule; refusing to grant relief under Section 17B is an exception, as the relief could be denied only in the rarest of the rare cases of jurisdictional error or where there is no relationship of employer and employee between the parties.
14. From the above discussion, it is manifest that the following ingredients must be satisfied for the applicability of Section 17-B of the ID Act:
(i) An Award is passed by a Labour Court, Tribunal or National Tribunal directing reinstatement of a workman;
(ii) The said award is assailed by the employer in proceedings in a High Court or the Supreme Court and the said award so far it directed reinstatement is stayed.
(iii ) If the workman has not been gainfully employed in any establishment during such period and an affidavit has been filed to such effect.
CM No.6623/2007 & WPC No.10465/2004 Page 9 of 16
15. On the satisfaction of aforesaid imperatives the High Court or Supreme Court, as the case may be, during the pendency of proceedings before it, can direct the employer to pay full wages last drawn by him or the minimum wages whichever are higher, inclusive of any maintenance allowance admissible to him under any Rule.
16. The Legislative intent behind the provision of Section 17-B of the Act is an indication and in fact the key to the opening of the reason and spirit of the law. The legislative emphasis on the expression "reinstatement" and an "award" indicates that once these requirements exist and the Award is stayed by the Court, then the workman should not be deprived of his wages during the period of grant of stay and disposal of the Writ Petition. A Full Bench of this Court while dealing with intent of legislature in the case of Delhi Transport Corporation v. Jagdish Chander 2005 II LLJ 390, held as under:
"11. Obviously the intention of the legislature was to provide definite protection to the workman against the long litigation and exploitation by the affluent Management. As such these welfare provisions are directly relatable to the prescribed benefit to the workman under various provisions of the statute...."CM No.6623/2007 & WPC No.10465/2004 Page 10 of 16
17. The Court went on to say that liability to pay workman during the pendency of the proceedings is subject to compliance of the provisions of Section 17-B of the Act.
18. By judicial interpretation, a workman's right to grant of interim wages, when an award in his favour directing reinstatement is challenged before the High Court or before the Apex Court, has been expanded and recognised as an integral part of the inherent power of the court under Article 226 of the Constitution of India to grant appropriate interim/pendentelite relief to a workman, having regard to the fact situation placed before the court.
19. While considering the contentions urged it is necessary to bear in mind that the spirit, intendment and object underlying the statutory provision of Section 17B is to mitigate and relieve, to a certain extent, the hardship resulting to a workman due to delay in the implementation of an award directing reinstatement of his services on account of the challenge laid to it by the employer. The primary consideration for making available such a relief to a workman is to be found in the benevolent purpose of the enactment. It recognises a workman's right to the bare minimum to keep his body and soul CM No.6623/2007 & WPC No.10465/2004 Page 11 of 16 together when a challenge has been laid to an Award directing his reinstatement. The statutory provisions provide no inherent right to assail an order or an award by an industrial adjudicator by way of an appeal.
20. The Apex Court in JT 2001 (Supp. I) SC 229 entitled Regional Authority, Dena Bank and Anr. v. Ghanshyam, after discussion and reiteration of the principles laid down in various judgments, cautioned that the interests of the employer also could not be ignored and held thus:
13. It must, however, be pointed out that while passing an interlocutory order the interests of the employer should not be lost sight of. Even though the amount paid by the employer under Section 17-B to the workman cannot be directed to be refunded in the event he loses the case in the writ petition (see Dena Bank case1) any amount over and above the sum payable under the said provision, has to be refunded by him. It will, therefore, be in the interests of justice to ensure, if the facts of the case so justify, that payment of any amount over and above the amount payable under Section 17-B to him, is ordered to be paid on such terms and conditions as would enable the employer to recover the same.
14. It is brought to our notice that pursuant to the orders of the High Court under challenge the appellant had paid the amount to the respondent. It is clarified that if the appellant succeeds in the writ petition, it will be entitled to recover the difference of amount (i.e. amount paid under the impugned order less the amount payable under Section 17-B of the Act) from the respondent in accordance with law.CM No.6623/2007 & WPC No.10465/2004 Page 12 of 16
21. No doubt, the language of Section 17B 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 Anr. v. Ghanshyam, reported in JT 2001 (Supp. 1) SC 229, wherein the Apex Court had examined this question in paras 8, 9 and 10 as discussed above, the benefit of Section 17-B has to be paid from the date of the award. 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 are 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 labour court/tribunal or to CM No.6623/2007 & WPC No.10465/2004 Page 13 of 16 pay the wages. It is keeping this aspect in mind, Section 17-B, came to be inserted.
22. Coming back to the case at hand, the counsel for the applicant respondent relied on decisions of Rajasthan High Court, in Rajasthan SRTC's case (Supra), Punjab and Haryana High Court Hans Raj Mahajan & Sons Pvt. Ltd's case (Supra) and this Court in Pratap Singh's case (Supra) dealing with the issue whether upon stay by High court of the order of the Ld. Tribunal, relief under S.17-B ID Act can be granted or not. The applications in the said cases were allowed for the reason that granting of such prayer of stay against such order of rejection of approval application amounts to staying operation of award of reinstatement. In view of that, workmen were held entitled for the last drawn wages from the date of the order of rejection application till the matter is finally heard and decided by the High Court.
23. The said judgments are of no assistance to the applicant respondent since, in the instant case, the application under Section 17- B has been filed belatedly after the decision in the writ petition was made. The Section 17B application is required to be filed by the CM No.6623/2007 & WPC No.10465/2004 Page 14 of 16 workman at the earliest opportune time after having to come to know the challenge made by the employer against the award directing reinstatement either in High Court or Supreme court and stay order granted in such proceedings.
24. The word 'judgment' means declaration or final determination of rights of the parties in the matter brought before the Court, while a 'final order' means an order which finally determines the rights of the parties and brings the case to an end. In the facts of the present case, the workman has preferred the application under 17-B of I.D. Act after decision of the writ petition. Indisputably, no proceedings are pending before this court after the writ petition filed by the employer was finally decided and therefore, in view of the foregoing discussion, no relief under S.17-B of the I.D. Act can be granted in the facts of the instant case. The Apex Court judgment in the case of Viveka Nand Sethi Vs. Chairman, J & K Bank Ltd. & Ors.(2005) 5 SCC 337, on which reliance was placed by the counsel for non applicant was not confronted with such an issue and therefore, will be of no help to determine the instant controversy. CM No.6623/2007 & WPC No.10465/2004 Page 15 of 16
25. In view of the above discussion, there is no merit in the instant application, therefore, the same is hereby dismissed.
April 19, 2009 KAILASH GAMBHIR, J
CM No.6623/2007 & WPC No.10465/2004 Page 16 of 16