Delhi High Court

State Bank Of India vs Ranbir Singh on 19 April, 2010

Author: Manmohan Singh

*           HIGH COURT OF DELHI : NEW DELHI

+         CM No.9092/2009 in W.P. (C) No.5766/2008

%                                 Decided on : 19.04.2010
State Bank of India                                  ......Petitioner
                        Through: Mr. Rajiv Kapur, Adv.

                        Versus

Ranbir Singh                                         .....Respondent
                        Through: Mr. Vipin M. Benjamin, Adv.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported
   in the Digest?

MANMOHAN SINGH, J. (Oral)

1. This is an application filed by the respondent workman

for grant of wages under Section 17-B of the Industrial Disputes

Act. The petitioner has filed the present petition under Article 226

and 227 of the Constitution of India seeking issuance of writ or

direction for quashing of award/order dated 6.5.2008 of the

Presiding Officer of the Central Government Industrial Tribunal Cum

Labour Court-II in I.D. No.165/1998.

2. By the impugned award, directions were issued to the

petitioner bank to reinstate the workman with effect from 8.3.1997

along with 25% back wages within two months from the date of

publication of the award. At the time of issuance of notice in the

writ petition, this Court in CM No.11050/2008 passed the interim

order on 8.92008, subject to the petitioner depositing with the

Registrar General of this Court by pay order/demand draft the

amount awarded in the impugned award dated 6.5.2008. The

effect and operation of the impugned award was ordered to be

stayed. The case of the respondent is that the respondent was

recruited as Messenger cum Water Boy on 10.4.1993 at Punjabi

Bagh Branch, State Bank of India of the Management. He worked

with the petitioner continuously upto 8.3.1997. Thereafter, his

services were terminated by the bank without any reason.

3. As per award dated 6.5.1998 it was held that the

respondent has worked continuously for 240 days every year i.e.

for the past about four years i.e. from 10.4.1993 to 8.3.1997 and

therefore, he was entitled to reinstatement with 25% back wages.

The contention of the respondent is that he is from weaker section

of the society and unemployed at present. His family consists of

his wife who is unemployed and two minor school going children.

Thus, he is facing the financial hardship. He is seeking the payment

of full wages at par with the regular employees currently

employees under the same category. It is submitted by him that at

present Messenger cum Water Boys at the petitioner bank as per

the salary slip of August 2008 were drawing a basic pay of

Rs.5655/- and other allowances.

4. Mr. Rajiv Kapur, learned counsel appearing on behalf of

the petitioner has referred and relied upon the judgment of

Jharkhand High Court in Employer, The Management of Central

Mine Planning and Design Institute Ltd. vs. Union of India

and Others, 2000 (90) FLR 67 in support of his argument that if

there is an error apparent on the face of the award, then the

workman is not entitled to wages under Section 17-B of the

Industrial Disputes Act.

5. It is settled law that while considering an application

under Section 17-B of the Industrial Disputes Act, the Court cannot

go into the merits of the case in the writ petition. It was so held in

Anil Jain v. Jagdish Chander, 86 (2000) DLT 510=2000 (5) AD

(Delhi) 413. Therefore, the decision referred by the petitioner will

not help the contention of the petitioner.

6. Admittedly, the petitioner has not placed any evidence

contrary to the plea raised by the respondent about the non-

employment. Therefore, the plea taken by the workman regarding

his non-employment has remained uncontroverted from the side of

the petitioner.

7. It is no doubt that the provision of Section 17-B of the

Industrial Disputes Act, 1947 comes into operation when an award

directing reinstatement of a workman is assailed in further

proceedings. The statute requires satisfaction of the following four

conditions;

(i) an Award by a Labour Court, Tribunal or National Tribunal directing reinstatement of a workman is assailed in proceedings in a High Court or the Supreme Court;

(ii) during the pendency of such proceedings, employer is required to pay full wages to the workman;

(iii) the wages stipulated under Section 17B are full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any Rule;

(iv) such wages would be admissible only if the workman had not been employed in any establishment during such period and an affidavit had been filed to such effect.

8. While considering an application under this provision it is

necessary to bear in mind 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 made to it by the

employer. It recognizes a workman‟s right to the bare minimum to

keep body and soul together when a challenge has been made to

an Award directing his reinstatement.

9. In Dena Bank v. Kiritikumar T. Patel, 1999 (2) SCC

106 (para 22) the Apex Court was of the view that the object under

Section 17B of the Industrial Disputes Act, 1947 is only to relieve to

a certain extent, the hardship that is caused to the workman due to

the delay in implementation of the Award. While considering the

payment which is required to be made by the employer to the

workman in this behalf, the Apex Court observed as follows:

"21. 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 provision 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 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 set aside by the award of the Labour Court or the 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. or the Bombay High Court in Corona Sahu Co. Ltd.

22. xxxx

23. 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 an 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 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. But we are unable to agree with the view of the Bombay High Court in Elpro International Ltd. that in exercise of the power under Articles 226 and 136 granted under Section 17B. 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."

This entitles the workman to wages under Section 17-B

of Industrial Disputes Act.

10. Accordingly, the management of the petitioner is hereby

directed to pay wages to the workman from the date of the

impugned award till the final decision of the writ petition at the rate

of last drawn wages or the minimum wages, whichever is higher,

subject to an undertaking in the form of an affidavit, to be filed by

the workman within two weeks from today, that he will return the

difference between the last drawn wages and the minimum wages

in the event of the management‟s succeeding in the main writ

petition.

11. The arrears of wages be paid to the workman within six