Anil Jain vs Jagdish Chander
1999 Latest Caselaw 560 Del

ORDER

Cyriac Joseph, J.

1. The petitioner-management of Nutan Arts Printers - has filed Writ Petition C.W.P. No. 82/97 challenging the award dated 15.3.1995 passed by respondent No.2 labour court directing reinstatement of the workman Shri Jagdish Chander (respondent No.1) with full back wages. Notice of the writ petition was ordered to the respondents on 9.1.1997. This Court also passed an interim order on 9.1.1997 staying the operation of the impugned award subject to the petitioner's depositing Rs. 25,000/- with the Registrar of this Court within four weeks. The petitioner deposited the amount of Rs. 25,000/- in terms of the order dated 9.1.1997. The interim order passed on 9.1.1997 has since been extended till the disposal of the writ petition. The present two applications are filed by respondent No. 1 - workman. The prayer in C.M. No. 6158/97 is for release of the sum of Rs. 25,000/- deposited by the petitioner to respondent No. 1 the prayer in C.M. No. 6159/97 filed under Section 17B of the I.D. Act is for a direction to the petitioner-employer to pay Rs. 2208/- per month to the respondent-workman during the pendency of the writ petition.

2. Since the operation of the impugned award stands stayed till the disposal of the writ petition and since the application of the workman under Section 17B of the I.D. Act is being separately considered, I am not inclined to allow C.M. No. 6158/97. Hence the said application is liable to be dismissed.

3. C.M. No. 6159/97 is filed under Section 17B of the Industrial Disputes Act. Section 17B of the I.D. Act reads thus:

"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 hall be payable under this section for such period or part, as the case may be."

It is clear from the above provision that a workman will be entitled to the benefit under Section 17B of the I.D. Act only if the following requirements are satisfied:-

(a) There is an award of the Labour Court/Tribunal/National Tribunal directing reinstatement of the workman.

(b) The employer has preferred proceedings against such award in a High Court or Supreme Court.

(c) The workman had not been employed in any establishment during the period of pendency of such proceedings.

(d) The workman has filed an affidavit to the effect that he had not been employed in any establishment during the period of pendency of such proceedings.

If all the above requirements are satisfied, the employer will be liable to pay to the workman full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule, during the period of pendency of the proceedings in the High Court or the Supreme Court. However, 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 Section 17B of the I.D. Act for such period or part as the case may be.

4. In the present case there is an award of the labour court directing reinstatement of respondent No.1 workman. The employer has preferred C.W.P. No. 82/97 in the High Court against the said award. The said award is pending in this Court since 9.1.1997. Respondent No.1 workman has filed an application dated 23.7.1997 (C.M. No. 6159/97) stating that he had not been employed in any establishment during the pendency of the writ petition and claiming the benefit under Section 17B of the I.D. Act. Along with the said application the respondent workman has also filed an affidavit dated 23.7.1997 stating that he is unemployed since the date of institution of the writ petition till the filing of the said affidavit. In the said affidavit the workman has reiterated that he is unemployed since 8.1.1997, the date of filing the writ petition till the date of the affidavit i.e. 23.7.1997. The writ petitioner has filed a reply to the application under Section 17B of the I.D. Act. Apart from a general denial of paragraph 3 of the application, the petitioner has not stated anything about the employment or unemployment of respondent No. 1. The Petitioner has not even alleged that respondent No. 1 had been employed in any establishment during the pendency of the writ petition. There is not even an attempt by the petitioner to prove that the workman had been employed during the pendency of the writ petition. In these circumstances, I do not find any reason or circumstance to disbelieve and reject the statement in the affidavit of respondent No.1 that he has not been employed in any establishment during the pendency of the writ petition. Hence respondent No.1 is entitled to the benefit under Section 17-B of the I.D. Act and the petitioner is liable to pay such benefits to respondent No.1.

5. In the application under Section 17B of the I.D. Act the applicant has claimed wages at the rate of Rs.2208/- per month which is stated to be the present minimum wage for a skilled workman. But under Section 17B of the I.D. Act, the workman is only entitled to full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule. There is no reference to minimum wage in the said section. In the judgment in Dena Bank Vs. Kritikumar T. Patel reported in JT 1997 (9) S.C. 167, the Hon'ble Supreme Court has held that the words "full wages last drawn" must be given their plain and material meaning and that they cannot be given any extended meaning as given by the Karnataka High Court in Vishveswaraya Iron & Steel Ltd. Vs. M.Chandrappa & Anr. or by the Bombay High Court in Carona Sahu Co. Ltd. Vs. A.K. Munakhan & Ors. The Karnataka High Court had held that the words "full wages last drawn" take into their fold wages drawn on the date of termination of the services plus the yearly increments and the D.A. to be worked out till the date of the award. The Bombay High Court had laid down that the expression "full wages last drawn" means the full wages which the workman was entitled to draw in pursuance of the award the implementation of which is suspended during the pendency of the proceedings. The Bombay High Court had also observed 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 the High Court or the Supreme Court. According to the Bombay High Court every component of wages payable on the date of the award must be taken into consideration while determining what were the wages payable to the workman on the date of the award. Overruling the above mentioned views of the Karnataka and Bombay High Courts, the Hon'ble Supreme Court held that the payment which is required to be made by the employer to the workman under Section 17B 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 the Supreme Court. It was further held that 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." For convenience, paragraphs 20, 21 and 22 of the said judgment of the Hon'ble Supreme Court are extracted hereunder :

"20. As per the decisions of the High Courts referred to above the expression "full wages last drawn" in Section 17B can mean as under :

(i) Wages only at the rate last drawn and not at the same rate at which the wages are being paid to the workmen who are actually working. (Daladdi Cooperative Agriculture Service Society Ltd. Vs. Gurcharan Singh)

(ii) Wages drawn on the date of termination of the services plus the yearly increment and the Dearness Allowance to be worked out till the date of the Award (Vishveswaraya Iron and Steel Ltd. Vs. M. Chandrappa & Anr. and Kritikumar B. Amin Vs. Mafatlal Apparels).

(iii) 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 (Carona Sahu Co. Ltd. Vs. A.K. Munakhan & Ors., Macneil and Magor Ltd. Vs. 1st Additional Labour Court & Anr. and P. Channaiah Vs. Dy. Ex. Eng.).

21. The first construction gives to the words "full wages last drawn" their plain and material meaning. The second as well as the third construction read something more than their plan and material meaning in those words. In substance these constructions read the words "full wages last drawn" as "full wages which would have been drawn". Such an extended meaning to the words "full wages last drawn" does not find support in the language of Section 17B. Nor can this extended meaning be based on the object underlying the enactment of Section 17-B.

22. As indicated earlier Section 17B 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 provisions is to relieve to a certain extent the hardship that is caused to the workman due to delay in the implementation of the award. The payment which is required to be made by the employer 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. Since the payment is of such a character Parliament thought it proper to limit it to the extent of 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 set aside by the award of the Labour Court or 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. Since the amount is not refundable or recoverable in the event of the award being set aside it would result in the employer being required to give effect to the award during the pendency of the proceedings challenging the award before the High Court or the Supreme Court without his being able to recover the said amount in the event of the award being set aside. We are unable to construe the provisions contained in Section 17B to cast such a burden on the employer. In our opinion, therefore, the words "full wages last drawn" must be given their plain and material meaning and they cannot be given the extended meaning as given by the Karnataka High Court in Visveswaraya Iron & Steel Ltd., (supra) or the Bombay High Court in Carona Sahu Co. Ltd., (supra)"

In the light of the clear provisions in Section 17-B of the I.D. Act and in the light of the above mentioned judgment of the Hon'ble Supreme Court, respondent No.1 workman is entitled only "to full wages last drawn" by him and he is not entitled to wages at the present rate of minimum wage.

6. I have noticed that in the above mentioned judgment the Hon'ble Supreme Court also held that Section 17B of the I.D. Act does not in any way preclude the High Court or the Supreme Court from passing an order under Articles 226 and 136 of the Constitution of India to direct payment of a higher amount to the workman if such higher amount is considered necessary in the interest of justice. Such a direction would be dehors the provisions contained in Section 17B and while giving the direction the Court may also give directions regarding refund or recovery of the excess amount in the event of the award being set aside. At the same time the Hon'ble Supreme Court further held that in exercise of the powers under Articles 226 and 136 of the Constitution of India the High Court or the Supreme Court cannot pass an order denying the workman the benefit granted under Section 17B. In paragraph 24 the judgment of the Hon'ble Supreme Court held thus:

"24. As regards the powers of the High Court and the Supreme Court under Articles 226 and 136 of the Constitution it may be stated that Section 17B, by conferring a right on the workman to be paid the amount of full wages last drawn by him during the pendency of the proceedings involving challenge to the award of the Labour Court, Industrial Tribunal or National Tribunal in the High Court or the Supreme Court which amount is not refundable or recoverable in the event of the award being set aside, does not in any way preclude the High Court or the Supreme Court to pass a order directing payment of a higher amount to the workman if such higher amount is considered necessary in the interest of justice. Such a direction would be dehors the provisions contained in Section 17-B and while giving the direction the Court may also give directions regarding refund or recovery of the excess amount in the event of the award being set aside. But we are unable to agree with the view of the Bombay High Court in Elpro International Ltd. (supra) that in exercise of the power under Articles 226 and 136 of the Constitution an order can be passed denying the workman the benefit granted under Section 17-B. The conferment of such a right under Section 17B cannot be regarded as a restriction on the powers of the High Court or the Supreme Court under Articles 226 and 136 of the Constitution."

In the present case all the requirements under Section 17-B of the I.D. Act have been satisfied. Hence the workman is entitled to the benefit granted under Section 17B. The employer is liable to discharge his liability under Section 17-B. At the same time I do not consider it necessary in the circumstances of this case or in the interest of justice to direct payment of a higher amount than what is stated in Section 17B.

7. Learned counsel for the petitioner submitted that respondent was never employed by the petitioner, that there was no employer-employee relationship between them, that the management was proceeded ex parte in the labour court due to the fault of its counsel, that the petitioner was a victim of some fraud and that the petitioner has a very good case in the writ petition and therefore the petitioner should not be directed to pay wages payable under Section 17-B. But while considering an application under Section 17-B of the I.D. Act this Court cannot go into the merits of the case in the writ petition. The application has to be considered strictly in terms of Section 17-B, irrespective of the merit of the writ petition. This Court can only consider whether the requirements mentioned in Section 17-B have been satisfied or not. If those requirements have been satisfied and if it has not been proved to the satisfaction of the Court that the workman had been employed and had been receiving adequate remuneration during the period of pendency of the writ petition, this Court has no option but to direct the employer to pay wages to the workman in terms of Section 17B, irrespective of the merit of the writ petition. As pointed out by the Hon'ble Supreme Court in Dena Bank Vs. Kritikumar T. Patel (supra) this Court cannot pass an order in exercise of the power under Article 226 of the Constitution of India to deny to the workman the benefit granted under Section 17B of the I.D. Act, if he is entitled to such benefit in terms of the said section. The only favour that the employer can ask for is to expedite the disposal of the writ petition.

8. Learned counsel for the petitioner further contended that since the operation of award stood stayed by this Court, respondent No.1 was not entitled to the benefit under Section 17-B. There is no merit in this contention. The stay of operation of the award cannot disentitle the workman to the benefit under section 17B. Section 17B was inserted in the I.D. Act in order to extend some relief and solace to the workman when the implementation of the award is delayed on account of the pendency of the proceedings in the High Court or the Supreme Court. Hence the stay of operation or implementation of the award can only strengthen and support the demand for the benefit under Section 17B. It is to be noted that in the absence of stay of operation of the award the employer has to reinstate the workman in service and the workman will naturally get the wages for the period he worked and there is no need for direction to pay wages. When there is stay of operation or implementation of the award is delayed and it causes hardship to the workman concerned. It is to prevent and avoid such hardship to the workman that Section 17B was inserted in the Industrial Disputed Act by the Industrial Disputes (Amendment) Act, 1982. The object of enacting the provisions contained in Section 17B is to give relief to the workman when the award directing reinstatement of the workman is under challenge in the High Court or the Supreme Court. The said relief is given with a view to relieve the hardship that may be caused to a workman on account of the delay in the implementation of the award as a result of the pendency of the proceedings in the High Court or the Supreme Court. Hence the provisions of section 17B of the I.D. Act are very much attracted in a case where the operation or implementation of the award is stayed by the High Court or the Supreme Court. If the benefit under Section 17B is denied on the ground that the impugned award stood stayed by the High Court or the Supreme Court, it will violate the letter and the spirit of the Section 17B and will defeat the very object behind the legislation.

9. Hence the application C.M.No.6159/1997 is allowed to the extent of directing the writ petitioner to pay to respondent No.1 wages due to him in terms of Section 17B of the I.D. Act for the period from 9.1.1997 to 23.7.1997 within a period of four weeks from today. Any claim under Section 17B of the I.D. Act for the period after 23.7.1997 cannot be considered in this application since there is no affidavit as required under Section 17B in respect of the said period. Any such claim can be considered only after the workman files necessary affidavit as required under Section 17B.

10. Thus application C.M. No. 6159/97 stands disposed, of in the above terms and application C.M. No. 6158/97 stands dismissed.

11. Let the writ petition be listed for directions before the Regular Bench on 30.7.1999.