Harsha Chandrakant Trivedi vs Mirc Electronics Ltd

    C/LPA/128/2023                            CAV JUDGMENT DATED: 28/02/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO.     128 of 2023

         In R/SPECIAL CIVIL APPLICATION NO. 8001 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA

==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== HARSHA CHANDRAKANT TRIVEDI Versus MIRC ELECTRONICS LTD ========================================================== Appearance:

MS VANDANA L BHATT(2464) for the Appellant(s) No. 1 MR DG SHUKLA(1998) for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MR. JUSTICE NIRAL R. MEHTA Date : 28/02/2023 CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Page 1 of 23 Downloaded on : Fri Mar 03 20:36:36 IST 2023 C/LPA/128/2023 CAV JUDGMENT DATED: 28/02/2023 A neat question of law arises for consideration - whether the benefit under section 17B of the Industrial Disputes Act, 1947 continues to become available to workman during the period of pendency of proceedings challenging the judgment and award of reinstatement even after workman attains the age of superannuation.

2. The basic facts in the backdrop are inter alia that judgment and award of the Labour Court dated 22.07.2017 in Reference (LCA) No. 953 of 2004 directing reinstatement and payment of backwages to the appellant-workman came to be stayed by this Court in Special Civil Application No. 8001 of 2018 filed by the respondent employer. The stay was granted subject to payment of wages under Section 17B of the Industrial Disputes Act, 1947 (hereinafter referred to as the "Act"). Also was the direction issued to the employer to furnish bank guarantee towards the amount of backwages payable as per the judgment and award.

3. In the aforesaid proceedings, the appellant- workman filed the Civil Application for vacating interim relief No. 2 of 2022, on the ground that the employer had not been complying with the provisions of Section 17B of the Act. In that Civil Application, order dated 16.01.2022 came to be passed by learned Single Judge observing that the prayer for vacating the interim relief would have no Page 2 of 23 Downloaded on : Fri Mar 03 20:36:36 IST 2023 C/LPA/128/2023 CAV JUDGMENT DATED: 28/02/2023 consequence since the workman had retired. The applicant - workman retired with effect from 31.05.2020.

3.1 Learned Single Judge directed to pay to the appellant the amount of backwages under section 17B of the Act till the date of retirement.

3.2 It was however held that workman would be entitled to receive wages under Section 17B till the date of retirement only.

3.3 The applicant stood aggrieved for the reason that it was held that the entitlement to receive wages under section 17B would not continue to subsist after workman's superannuation and that from onwards the date of retirement, the benefit of section 17B would not be paid. The present Letters Patent thus came to be filed to call in question the said part of the decision of the learned Single Judge.

3.4 Now, aforesaid order dated 16.09.2022 brought under the Letters Patent Appeal is an interim order. Ordinarily, the Letters Patent Appeal could not have been entertained against an interim order, for, by their very nature, the interim orders do not determine the final rights of the parties. Pure and simplicitor interim orders could not be termed as judgment to be entertained under the Letters Patent jurisdiction.

C/LPA/128/2023 CAV JUDGMENT DATED: 28/02/2023 3.4.1 In above regard, as to the maintainability of the Letters Patent Appeal, recent decision of the Supreme Court in Shyam Sel and Power Limited vs. Shyam Steel Industries Ltd. [(2023) 1 SCC 634], deserves to be referred to. The Apex Court discussed therein, in the context of Clause 15 of the Letters Patent Appeal of Calcutta High Court, as to which type of order could be classified as judgment for the purpose of intra court appeal. Addressing the question when can an order be construed as 'judgment' under clause 15 of the Letters Patent, it was observed that orders in order to be amenable to Letters Patent jurisdiction must have been such possessing the quality of finality.

3.4.2 In Shyam Sel and Power Limited (supra), the Supreme Court observed thus, "It could thus be seen that though this Court has held that the term 'judgment' used in Letters Patent could not be given a narrower meaning as is given to the term 'judgment' used in CPC and that it should receive a much wider and more liberal interpretation, however, at the same time, each and every order passed by the trial judge could not be construed to be a 'judgment' inasmuch as there will be no end to the number of orders which would be appealable under the Letters Patent. It has been held that the word 'judgment' has undoubtedly a concept of finality in a broader and not in a narrower sense. It has been held that where an order vitally affects a valuable right of the defendants, it will undoubtedly be treated as a 'judgment' within the meaning of Letters Patent so as to be appealable to a larger Bench."

C/LPA/128/2023 CAV JUDGMENT DATED: 28/02/2023 (para 18) 3.4.3 After referring to Shah Babulal Khimji vs. Jayaben D. Kania [(1981) 4 SCC 8], it was held, "Whether an order impugned would be a 'judgment' within the scope of Clause 15 of Letters Patent, would depend on facts and circumstances of each case. However, for such an order to be construed as a 'judgment', it must have the traits and trappings of finality. To come within the ambit of 'judgment', such an order must affect vital and valuable rights of the parties, which works serious injustice to the party concerned. Each and every order passed by the Court during the course of the trial, though may cause some inconvenience to one of the parties or, to some extent, some prejudice to one of the parties, cannot be treated as a 'judgment'. If such is permitted, the floodgate of appeals would be open against the order of Single Judge."

(para 22) 3.4.4 It was held thus that whether the order could be said to be a 'judgment' within the scope of Clause 15 of the Letters Patent, would depend on the facts and circumstance of each case. It was observed and held that for such an order to be considered as judgment, it must have 'traits and trappings' of finality.

3.5 In the order impugned in this Letters Patent Appeal, learned Single Judge has held that in view of retirement of the applicant - workman, she would not be entitled to get the last drawn wages, which is the benefit conferred under section 17B of the Act. As far as the rights of the applicant to get the benefit Page 5 of 23 Downloaded on : Fri Mar 03 20:36:36 IST 2023 C/LPA/128/2023 CAV JUDGMENT DATED: 28/02/2023 flowing from Section 17B of the Act, there is a final determination of issue by learned Single Judge, as it is held that the applicant workman who has retired will have no such right to receive the benefit during the pendency of proceedings of the Special Civil Application. Therefore, the order can be said to have a traits and trappings of finality insofar as the right to receive wages under Section 17B of the Act to the workman is concerned. It itself can be said to be a substantive independent issue, and the one finally decided.

3.6 It is in the above view that present Letters Patent Appeal is entertained for examination of the merits of the impugned order, eventhough the order is an interim order.

3.7 Section 17B 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:

C/LPA/128/2023 CAV JUDGMENT DATED: 28/02/2023 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.

4. Learned advocate Ms. Vandana Bhatt for the applicant vehemently submitted that having regard to the language of the aforesaid provision, it is mandated by the legislature that the provision shall operate even if the workman retires from service when the proceedings are pending. She submitted that the language of Section 17B was clear. It was submitted that when it is contemplated expressly that the last drawn wages would be receivable during the period of pendency of the proceedings, the obligation of the employer would not get wiped out even if the workman retires when proceedings are pending. It was stressed that it was not the court's function to alter the language of the legislature and then interpret the provision.

4.1 In order to substantiate the submission that the Court cannot alter or tinker with the language in the statutory provision and that it has to give effect to the intention of the statutory words and that it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning, learned advocate for the appellant relied on Page 7 of 23 Downloaded on : Fri Mar 03 20:36:36 IST 2023 C/LPA/128/2023 CAV JUDGMENT DATED: 28/02/2023 the decision of the Apex Court in Bharat Aluminium Company Vs. Kaiser Aluminium Technical Services Inc. [(2012) 9 SCC 552] referred to the English decision in Duport Steels Ltd. v. Sirs [1980) 1 WLR 142] with approval.

4.2 Learned advocate for the applicant referred to three ingredients of section 17B. In order to apply the said provision, firstly the Labour Court should have directed reinstatement of the workman; secondly, the employer should have proceedings against such award in the High Court or in the Supreme Court or thirdly, the workman should not have been employed in any establishment during such period.

4.3 What was thereafter pressed into service was the decision of the Calcutta High Court in Bharat Petroleum Corporation Ltd. vs. Union of India & Ors. [1998(1) LLJ 202]. The Calcutta High Court in Bharat Petroleum Corporation Ltd.(supra) proceeded to take view that the provisions of Section 17B would apply even in respect of the workmen who retired from service in the meantime.

4.3.1 It was thus observed in paragraph 15, "In a case like this, where all the three ingredients for the application of said Sec. 17- B are existing, to hold that said Sec. 17-B has no manner of application in respect of the workmen who have crossed their date of retirement in the meantime would mean to rewrite the provisions of said Sec 17-B. It cannot also be held that notwithstanding anything contained Page 8 of 23 Downloaded on : Fri Mar 03 20:36:36 IST 2023 C/LPA/128/2023 CAV JUDGMENT DATED: 28/02/2023 in said Sec. 17-B, the employer shall not be liable to pay such workmen who would have retired had they been retained in the service of the employer. This would amount to legislate a new provision. The Court has no power, authority, competence or jurisdiction to legislate or rewrite a provision of the Statute. Where the words used are plain and unambiguous like those in the said Sec 17-B and the meaning of the Section is clear, the Court cannot add or substitute any word."

(para 15) 4.3.2 The Calcutta High held that even if the workman crossed over his date of retirement during pendency of the dispute before the Tribunal or during the pendency of proceeding before the High Court or Supreme Court, he is entitled to an order in his favour under the provisions of Section 17B of the Act if the aforesaid three necessary ingredients exist.

4.4 A Single Judge of the High Court of Delhi in Management Centaur Hotel v. P.S. Mohan Nair [2012(1) LLJ 89(Del)] shared the view of the Calcutta High Court expressed in Bharat Petroleum Corporation Ltd. (supra). It was observed in paragraph 12 that, "I am unable to see any difference in the needs of such a workman/employee (which were sought to be redressed by Section 17B) before or after his attaining the age of superannuation."

(para 12) 4.4.1 The reasons weighed with the Delhi High Court, as extracted from paragraph 12, were thus, "Section 17B was enacted to offset the delays Page 9 of 23 Downloaded on : Fri Mar 03 20:36:36 IST 2023 C/LPA/128/2023 CAV JUDGMENT DATED: 28/02/2023 caused in implementation of an award of reinstatement owing to pendency of proceedings in the High Court or the Supreme Court. Significantly, no such benefit is granted to the workman/employee till the proceedings are pending before the Industrial Adjudicator and till an award of reinstatement is made. The legislature has not provided for any appeal or other remedy against such an award. However, the remedy of judicial review under the Constitution could not be denied to the employer aggrieved from the award. Had the award been permitted to be implemented, the employee thereunder would have been reinstated and would have started earning wages as being earned by his contemporaries and would also have, on reaching the age of superannuation earned the retiral benefits. However, owing to the pendency of the proceedings against the award in the High Court or the Supreme Court, the employee is deprived of the benefits aforesaid of reinstatement."

(para 12) 4.5 On the other hand, learned advocate Mr. D.G. Shukla for the respondent - employer relied on the decision of the learned single Judge of this High Court in Essar Project Ltd. Vs. N.D. Jagdishwara [2012(4) GLR 3559]. Therein, it was held that the workman would not be entitled to be paid last drawn wages in lieu of reinstatement under Section 17B of the Act in respect of the period after he attains the age of superannuation.

4.6 It was further submitted that the Bombay High Court in Hind Rectifiers Ltd. vs. Presiding Officer [2000(3) LLJ 300 (Bombay)], also took the view that benefit of section 17B would not be available to the Page 10 of 23 Downloaded on : Fri Mar 03 20:36:36 IST 2023 C/LPA/128/2023 CAV JUDGMENT DATED: 28/02/2023 workman after his superannuation.

4.7 In yet another judgment of the Bombay High Court in Samgamner Nagarpalika vs. Nandkishor Panalal Saki, in Writ Petition No. 1199 of 2005 decided on 18.03.2016, it was stated in paragraph 13, "It is trite law that Section 17B of the Industrial Disputes Act has its applicability till the date of superannuation of an employee and any direction by this Court to pay last drawn wages u/s 17B to an employee, who has succeeded before the Reference Court or Tribunal, is to be implemented only till the date of the employee's superannuation."

5. The decision of the learned Single Judge of this Court in Essar Project Ltd. (supra), after noticing the provisions of Section 17B of the Act discussed the scope and working of the provision in the following words, "Therefore, in a case where a Labour Court, Tribunal or National Tribunal has passed an award directing the reinstatement of any workman and the employer prefers any proceedings against such an award in High Court or the Supreme Court, the employer is liable to pay such workman, during the pendency of such proceedings, 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 a Court. It cannot be disputed that if the employer/reinstates the concerned workman pursuant to any award passed by the Labour Court or Tribunal in such a case there is no question Page 11 of 23 Downloaded on : Fri Mar 03 20:36:36 IST 2023 C/LPA/128/2023 CAV JUDGMENT DATED: 28/02/2023 of making any payment of wages under Section 17B of the ID Act as the workman is already employed/reinstated. As stated herein above, only in a case where there is an order passed by the Labour Court or Tribunal directing reinstatement and such an award is challenged in that case only, the workman would be entitled to the wages under Section 17B of the ID Act."

5.1 It was expressed that benefit of payment of wages to be available under Section 17B is linked with reinstatement. If there is likelihood of reinstatement, benefit under Section 17B could be availed. Where the reinstatement was not to become possible, there would be no operation of the provision.

5.1.1 It was further observed, "Therefore, the wages as provided under Section 17B of the ID Act has a direct nexus with the reinstatement. The reinstatement of the workman in service can be only when the workman would be entitled to continue in service. On attaining the age of superannuation, the workman is not entitled to be continued in service therefore, there is no question of reinstatement in service of a workman after he has attained the age of superannuation. Under the circumstances, there is no question of making payment of wages as provided under Section 17B of the ID Act for the period after the workman has attained the age of superannuation."

5.1.2 The Court stated that considering the legislative intent, it could be said that the wages under section 17B of the Act are provided in lieu of Page 12 of 23 Downloaded on : Fri Mar 03 20:36:36 IST 2023 C/LPA/128/2023 CAV JUDGMENT DATED: 28/02/2023 the order of reinstatement as despite the order of reinstatement by the competent Industrial Adjudicator, under the guise of challenging the same before the High Court or the Supreme Court, a workman could not be deprived of reinstatement and workman should not be made to suffer. The payment of wages under Section 17B of the Act is contemplated since the workman can survive if such wages are provided, it was observed.

5.1.3 It was held that benefit under the Section will not be available after superannuation, extracting from the same, "The contention on behalf of the opponent that irrespective of the fact that whether in the meantime the workman has attained the age of superannuation, the workman shall be entitled to wages under Section 17B of the ID Act till the proceedings are pending, cannot be accepted. It is not certain when the proceedings before the High Court or the Supreme Court arising out of the order of reinstatement passed by the Industrial Adjudicator would be completed. In some cases it may happen that the proceedings before the High Court are continued for number of years and even more than 5 to 10 years after the workman has attained the age of superannuation. In that case if the contention on behalf of the opponent is accepted, in that case, he will be getting wages under Section 17B of the ID Act for number of years despite he has attained the age of superannuation."

5.1.4 Learned Single Judge in Essar Project Ltd. (supra), highlighted the aspect of employer-employee relationship to observe that reinstatement of workman Page 13 of 23 Downloaded on : Fri Mar 03 20:36:36 IST 2023 C/LPA/128/2023 CAV JUDGMENT DATED: 28/02/2023 in service would be only when the workman would be entitled to continue in service, which is again viewed as necessary condition pre-existing or entitlement of benefits under section 17B of the Act.

5.1.5 Submission was harped by learned advocate for the appellant - workman with reference to the group of words "during the period of pendency of such proceedings", to contend that the benefit would continue to remain available for entire such period. Similar argument was advanced in Essar Project Ltd. (supra), but was not found favour. The Bombay High Court dealt with the very argument in in Hind Rectifiers Ltd. (supra), to answer the same by observing thus in paragraph 11, "The question is, as to whether the employee is liable to pay such wages to the employee even beyond the age of superannuation - The wording used in the aforesaid provision of Section 17-B is that, such payment shall be made by the employer "during the period of pendency of such proceedings in the High Court or the Supreme Court". Although the wordings are clear which requires the employer to make payment of wages during the period of pendency of such proceedings, it is difficult to imagine the situation where an employee who has superannuation would also be entitled to receive such wages by resorting to the provisions of Section 17-B even beyond the period of superannuation.

5.1.6 It was further stated in the same paragraph, Page 14 of 23 Downloaded on : Fri Mar 03 20:36:36 IST 2023 C/LPA/128/2023 CAV JUDGMENT DATED: 28/02/2023 "As rightly pointed out by the learned Counsel representing the employee, the intention of the statute in incorporating the provisions of Section 17-B was that the employee should not suffer any hardship where the employer has taken recourse to file proceedings in the High Court or the Supreme Court and obtained the stay of the award of reinstatement passed in his favour.

5.1.7 The Bombay High Court proceeded further to observe, "In absence of such provisions, the award of reinstatement that is stayed by the higher Courts could not be implemented and the proceedings in higher Courts which remain pending and during that period employee would be without any wages whereby he would suffer hardship. It is with a view to overcome this situation that the provisions of Section 17-B are incorporated so as to avoid the hardship that may be caused to the employee as a result of the employer having taken the proceedings to the High Court or the Supreme Court."

5.2 While this High Court speaking through learned Single Judge in Essar Project Ltd. (supra), holds the above view, similar was laid down by the Bombay High Court in Hind Rectifiers Ltd. (supra). It was observed in paragraph 12 by the Bombay High Court in the said decision that what is to be paid to the employee under the provisions of Section 17B is only the wages which he is entitled to and also for the period for which he is entitled to. It also indicates the period for which such entitlement exists. It provides that workman shall be paid full Page 15 of 23 Downloaded on : Fri Mar 03 20:36:36 IST 2023 C/LPA/128/2023 CAV JUDGMENT DATED: 28/02/2023 wages last drawn by him at the time of termination of service. It was observed that indisputably, the services of the workman are governed by the conditions of service, which inter alia prescribe the age of superannuation to be 60 years.

5.2.1 Thereafter, the Bombay High Court observed to explain as to why the benefit under section 17B cannot be extended to after retirement, reproduced from para 12 of the judgment, "If this is so, even in normal course and where there is no litigation the employee could have continued or is entitled to continue in service only upto the age of superannuation. Therefore, the basic right of the employee is to continue in service till the age of superannuation only and not beyond that. Thus, even if under the order passed by the Labour Court, Tribunal or the National Tribunal, for that matter, for reinstatement of the employee and that had been given effect to, that would entitle the employee to continue in service only upto the age of superannuation and not beyond that. These things having been clear, it is impossible to imagine a situation like one in hand where the employee can continue to get the benefit of full wages by taking recourse to Section 17-B of the Act beyond the age of superannuation."

5.2.2 The definition of wages occurring in section 2(rr) of the Industrial Disputes Act, was referred to, which means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, become payable to a workman in respect of Page 16 of 23 Downloaded on : Fri Mar 03 20:36:36 IST 2023 C/LPA/128/2023 CAV JUDGMENT DATED: 28/02/2023 his employment, or of work done in such employment.

5.2.3 It stands to reason as observed by the High Court that under Section 17B, the workman is entitled to receive his full wages last drawn by him, which means that the workman would be entitled to wages and nothing more. These wages which would be the entitlement of the workman has to accord to and to remain dependent upon terms of employment. The terms of employment would include that the workman would be entitled to continue till the age of superannuation and not beyond that, therefore, wages would be payable under Section 17B till the workman attains the age of superannuation.

5.3 The decision of the Calcutta High Court in Bharat Petroleum Corporation Corporation Ltd. (supra), relied on by the learned counsel for the applicant seems to be clashing and standing in conflict with another decision of the very High Court. The Calcutta High Court in I.C.I. India Limited vs. Second Labour Court [2009(0) AIJEL-WB 523221] decided on 21.10.2009, found substance in the submission canvassed that the Court cannot direct payment of wages to a workman under section 17B of the Act when the workman has already crossed the age of superannuation. Any order on that score was refused by the Calcutta High Court.

5.4 The decision of the Bombay High Court in Hind Page 17 of 23 Downloaded on : Fri Mar 03 20:36:36 IST 2023 C/LPA/128/2023 CAV JUDGMENT DATED: 28/02/2023 Rectifiers Ltd. (supra) and of the Calcutta High Court in I.C.I. India Limited (supra), came to be relied by the Madras High Court in Varadaraja Textiles (P) Ltd., Coimbatore vs. Labour Court, Coimbatore[1999(1) CLR 63], holding that the moment the workman reaches the age of superannuation, his right to get wages is lost and his right is only to get backwages as per the award, which is impugned in the writ petition.

6. In wake of the divergent views of different High Courts as to the applicability of section 17B, particularly, in respect of the period when the employee has retired from service during the pendency of the proceedings, at the outset, the purport and purpose of the provision may be looked at.

6.1 The Supreme Court in Dena Bank vs. Kiritkumar T. Patel [1999(2) SCC 106] held that the object and reasons, which lead to enact the provisions, thereafter, observing as under, in relation to the operation of section 17B, "As indicated earlier Section 17-B has been enacted by Parliament with a view to give relief to a workman who has been ordered to be reinstated under the award of a Labour Court or the Industrial Tribunal during the pendency of proceedings in which the said award is under challenge before the High Court or the Supreme Court. The object underlying the provision is to relieve a certain extent the hardship that is caused to the workman due to delay in the Page 18 of 23 Downloaded on : Fri Mar 03 20:36:36 IST 2023 C/LPA/128/2023 CAV JUDGMENT DATED: 28/02/2023 implementation to the workman is in the nature of subsistence allowance which would not be refundable or recoverable from the workman even if the award is set aside by the High Court or this Court."

(para 21) 6.1.1 It was further explained, "Since the payment is of such a character 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". To read these words to mean wages which would have been drawn by the workman if he had continued in service if the order terminating his services had not passed since it has been by the award of the Labour of Industrial Tribunal, would result in so enlarging the benefit as to comprehend the relief that has been granted under the award that is under challenge."

7. The words "full wages last drawn" were under consideration by the Supreme Court in the context of which the object of the provision was explained. For the purposes of the issue under consideration, the word "wages" used in the provision may assume significance to throw light.

7.1 Wages are relatable to the payment to a workman who is in service. Right to receive wages either independently or by applying Section 17B in a given case, depends upon the factum of the employee or workman having been in service. Once the workman retires, the idea of payment of wages to him ceases Page 19 of 23 Downloaded on : Fri Mar 03 20:36:36 IST 2023 C/LPA/128/2023 CAV JUDGMENT DATED: 28/02/2023 to operate. Whatever the workman receives post- superannuation, may be the payment in different form such as retirement benefit or leave encashment or others. But any such post-service benefits indeed could not be classified as wages. Right to receive wages disappears once the workman or employee reaches the age of retirement.

7.2 Learned Single Judge of this High Court in Essar Project Ltd. (supra) addressed and analysed the question whether the provisions of Section 17B of the Act would apply to give benefit to the workman after superannuation, from various relevant standpoints to conclude that after retirement the said benefit would not extend.

7.3 Bombay High Court in Hind Rectifiers Ltd. (supra) rightly referred to the definition of wages in clause 2(rr) of the Industrial Disputes Act to explain the rationale of the view that the applicability of Section 17B and the payment to be made thereunder are of the last drawn wages would come to an end if the employee or the workman retires. It would be an absurd situation where the employee can continue to get the benefit of wages by taking resort to Section 17-B of the Act beyond the age of superannuation.

7.4 The acid test could be said to be the employer- employee relationship when it comes to payment of Page 20 of 23 Downloaded on : Fri Mar 03 20:36:36 IST 2023 C/LPA/128/2023 CAV JUDGMENT DATED: 28/02/2023 wages so as to make applicable to Section 17B of the Act. There would be no gainsaying that Section 17B of the Act, for the purpose of its operation and applicability, pre-supposes the existence of jural relationship of employee and employer. The employer discharges the obligation to pay the last drawn wages during the period of pendency of proceedings before the High Court or the Supreme Court, when the reinstatement is challenged by the employer, provided the employee or the workman is in service.

7.5 The contemplation of wages "during the period of pendency of such proceedings" is an indication that subsistence of employment of the workman in the establishment of the employer is a condition precedent. The last drawn wages under Section 17B are in line of the right to reinstatement. Once the reinstatement becomes impossible upon superannuation, section 17B benefit would cease to become available. The service conditions would include condition of age of superannuation. It would operate once the relationship of employer and employee is snapped upon superannuation, to result into stoppage of benefit under Section 17B of the Act.

7.6 The group of words in section 17B "during the period of pendency of such proceedings" have to be construed accordingly for their import and cannot be extended to include the period post the superannuation of the workman or employee. These Page 21 of 23 Downloaded on : Fri Mar 03 20:36:36 IST 2023 C/LPA/128/2023 CAV JUDGMENT DATED: 28/02/2023 words cannot be read un-contextual of several germane considerations which are the conditions for applying the benefit under Section 17B of the Act. The construction of the words in the statute has to be naturally to be such which would not lead artificial results. The interpretation of any statutory section cannot lead to unrealistic results or such results which may not stand to logic and any sense. It would be illogical and absurd results would ensue if section 17B of the Act is continued to apply to give benefit of last pay drawn 'wages' to the workman eventhough the workman has retired in light of condition of service regarding superannuation and the employer - employee relationship has stood severed. Such interpretation would not be permissible.

7.7 In view of the above discussion, it is held that the view taken by the Calcutta High Court in Bharat Petroleum Corporation Ltd. (supra) and in Management Centaur Hotel (supra) by Delhi High Court cannot be said to be good law. The view taken by learned Single Judge of this Court in Essar Project Ltd. (supra) and the same view taken by the Bombay High Court in Hind Rectifiers Ltd. (supra) as well as in I.C.I. India Limited (supra) of Calcutta High Court and similar view taken by the Madras High Court in Varadaraja Textiles (P) Ltd. (supra) is required to be followed. The view taken by the learned Single Judge in Essar Project Ltd (supra) is endorsed to and stands confirmed in wake of the views taken by the Page 22 of 23 Downloaded on : Fri Mar 03 20:36:36 IST 2023 C/LPA/128/2023 CAV JUDGMENT DATED: 28/02/2023 different High Courts.

7.8 It is held that the view in Essar Project Ltd. (supra) lays down correct proposition of law that benefit under section 17B of the ACt would not be applicable to the workman or employee after his or her retirement even though the proceedings may be pending.

8. It is observed that learned Single Judge shall endeavor to ensure that the proceedings of the main Special Civil Application pending before him are disposed of at the earliest since the workman has retired.

9. It is further observed that the bank guarantee towards payment of backwages furnished by the respondent employer shall continue to stand renewed till final disposal of the Special Civil Application, as per the statement made by learned advocate for the respondent.

10. In light of the above discussion and in view of what is held above, the present Letters Patent Appeal cannot be entertained and the same is dismissed.

(N.V.ANJARIA, J) (NIRAL R. MEHTA,J) BIJOY B. PILLAI Page 23 of 23 Downloaded on : Fri Mar 03 20:36:36 IST 2023