M/S Mysore Lamps Works Ltd. vs Girish Kumar Jain
2013 Latest Caselaw 182 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     LPA 31/2013

      M/S MYSORE LAMPS WORKS LTD.                   ..... Appellant
                   Through: Mr Harvinder Singh, Adv.

                   versus

      GIRISH KUMAR JAIN                           ..... Respondent
                   Through: Counsel for the respondent.

      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE V.K. JAIN

               ORDER

% 11.01.2013

1. The services of the respondent, who was appointed as Sales

Representative with appellant, were terminated with effect from 25.04.1989.

Feeling aggrieved, the respondent raised an industrial dispute, claiming the

termination to be illegal. On the said dispute being referred to the Industrial

Tribunal, reinstatement of the respondent with back wages till 05.05.1992

was ordered vide award dated 13.10.2003.

2. Feeling aggrieved from the order passed by the Tribunal, the appellant

filed WP(C) No. 18887/2006, which is pending disposal. The respondent

filed CM No. 17172/2006 under Section 17-B of Industrial Disputes Act.

The application was opposed by the appellant on the ground that the

respondent was not a workman and the operations of the appellant company

had been permanently closed vide order dated 05.06.2003 passed by

Government of Karnataka. It was also submitted before the learned Single

Judge that the conduct of the respondent in declining the offer made to him

on 05.05.1992, during conciliation proceeding, to resume his duty indicates

that he was employed elsewhere and, therefore, he was not entitled to the

benefit of Section 17-B of Industrial Disputes Act. The learned Single

Judge took the view that it was obligatory for the Court before which an

award directing reinstatement of a workman is challenged, to pass an order

directing payment to the workman in terms of Section 17-B of the Act and

this relief can be denied only if the employer shows that the workman was

gainfully employed in some industrial establishment. The learned Single

Judge also noted that the writ petitioner had not brought on record any such

proof.

3. Section 17-B of Industrial Disputes Act reads as under:-

"17B. 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.]"

4. It would be seen from a perusal of the provisions that whenever the

Labour Court or National Tribunal directs reinstatement of a workman and

such an order is challenged in a High Court or Supreme Court, the employer

is required to pay to such workman, full wages last drawn by him, during the

pendency of such proceedings in the High Court or Supreme Court, as the

case may be, provided the workman is not employed during such period and

an affidavit by such workman has been filed to that effect in the Court

before which the award is challenged. It is only in a case where the

employer proves to the satisfaction of the High Court of Supreme Court, as

the case may be, that the workman had been employed and had been

receiving adequate remuneration during such period or part thereof, that it

can deny wages to the workman for the period he was employed and was

receiving adequate remuneration. No other exception to the requirement of

directing payment of full wages last drawn by the workman is envisaged in

the Act.

5. Before the enactment of Section 17-B, the Courts were, in their

discretion, awarding damages to the workman, but whether to pass such an

order or not was dependent upon the Court concerned. The Legislature

noticed instances where workmen had been dragged into litigation before

superior Courts, after their reinstatement was ordered by the Labour Court

and such litigations were prolonged for unreasonable periods taking one

technical plea or the other, so as to tire out the workmen. As a result, the

legal battle between the workmen and the employer turned into an unequal

fight, in a number of cases. Noticing the plight of the workmen, the

Legislature stepped in so as to remove the handicap which the workmen

suffered on account of such prolonged litigation at the instance of the

employer and came out with enactment of Section 17-B.

In Dena Bank v. Kiritikumar T. Patel 1998-LLR-01, Supreme Court,

noted that the relief under Section 17-B has been given with a view to

relieve the hardship that would be caused to a workman on account of delay

in implementation of the award as a result of the pendency of the

proceedings in the High Court or in the Supreme court.

6. Considering the objective behind enactment of Section 17-B, we need

to construe the provision in a manner which does not defeat the right of the

workman and does not lead to injustice being caused to him. We are,

therefore, of the view that subject to fulfillment of the conditions which the

Parliament has incorporated in the said Section, the Court has no discretion

to deny the right available to the workman and impose a condition other than

that (i) the Labour Court should have directed reinstatement of the

workman; (ii) the employer should have initiated proceedings in the High

Court of in the Supreme Court, against the order directing reinstatement; and

(iii) the workman should not have been employed during the period for

which such an order is passed.

7. In the case before us, the learned Single Judge noted that the appellant

had not furnished any proof of the respondent being employed. Therefore,

the case of the appellant is not covered by the proviso to Section 17-B of the

Act. This is also not the case of the appellant that the respondent did not file

affidavit that that he was not employed in any establishment.

7. We are unable to accept the contention that the appellant is absolved

from its statutory liability of paying last drawn wages to the respondent on

account of its operations having been closed down. The law admits of no

such exception. Irrespective of whether an industry is making profit or

incurring a loss and whether it continues to do business or shuts down its

operations, it would be liable to pay full last drawn wages to the workman in

case there is an award in favour of the workman directing his reinstatement.

Any other interpretation of this beneficial provision may result in a situation,

where a workman, despite order of reinstatement in his favour, is unable to

sustain himself and at the same time has to raise resources to defend the

litigation initiated by the employer, by challenging the award in his favour.

We cannot place the workman in such a helpless situation. It would be

pertinent to note here that appellant company claims to have stopped

operations, it has not been wound up and it continues to exist as legal entity.

8. As regards the contention that being a sales representative, the

respondent was not a workman, we are of the view that this can be decided

only in the writ petition and not while considering an application under

Section 17-B of the Act. The question as to whether the respondent is a

workman or not is a disputed question of fact and not a question purely of

law. The plea that the respondent is not a workman was taken by the

appellant before an Industrial Tribunal and was rejected. The correctness or

otherwise of the view taken by the Tribunal in this regard would be tested

while deciding the writ petition and no view in this regard can be taken

either at the time of deciding an application under Section 17-B of the Act or

in an appeal filed against the order passed on such an application.

9. The learned counsel for the appellant has relied upon the Single

Bench decision of this Court in WP(C) No. 20183/2005 Dolly International

v. Workmen C/o All India Ge. Mazd., decided on 04.04.2006, Lady Irwin

College Society and Anr v. Sushila Devi & Ors. 2006 LLR 1146, the

decision of Calcutta High Court in Carrit Moran & Co. Pvt. Ltd. v. State of

West Bengal and Ors. 2008 I CLR 512 and the decision of Gujarat High

Court in Akbarkhan M. Pathan v. General Manager, Civil Application No.

5486/2006, decided on 19.08.2003 in LPA No. 933/1999. He has also

referred to the decision of Division Bench of this Court in Delhi Transport

Corporation v. Kishan Pal, decided on 28.05.2012 in LPA No. 334/2012.

He has further referred to the decisions of Supreme Court in The Works

Manager, Bihar State Superphosphate Factor, Sindri v. Sri C.P. Singh

and Ors., Etc. (1973), 3 SCC 858, Harshad Chiman Lal Modi v. DLF

Universal Limited and Anr. (2005) 7 SCC 791 and H.R. Adyanthaya and

Ors. v. Sandoz (India) Ltd. & Ors. (1994) 5 SCC 737. As far as the

decisions of Supreme Court in The Works Manager, Bihar State

Superphosphate Factor (supra), Harshad Chiman Lal Modi (supra) and

H.R. Adyanthaya and Ors. (supra) are concerned, we find no such

proposition of law in them as would support the contention of the learned

counsel for the appellant that the question as to whether the employee is a

workman or not can be examined while considering an application under

Section 17-B of the Act. There is no quarrel with the legal proposition of

law that a decree passed by a Court having no jurisdiction over subject

matter of the suit is nullity and invalidity of such a decree can be set up even

in collateral proceedings. But, the question whether the respondent was a

workman or not can be gone into while deciding writ petition and not while

passing a statutory order in terms of the mandate of Section 17-B of the Act.

In the case of Delhi Transport Corporation (supra), the view taken

by a Division Bench of this Court was that the appellant DTC was liable to

pay wages under Section 17-B of the Act only till the workman attained the

age of superannuation. In the case before us, this is not the case of the

appellant that the respondent had already attained the age of superannuation.

Therefore, this judgment has no applicability to the facts of the case before

us.

In the case of Dolly International (supra), a learned Single Judge of

this Court found that an ex parte award had been obtained without service

upon the employer. It was, in these circumstances, that the application under

Section 17-B of the Act was dismissed. In Lady Irwin College Society

(supra), decided by another learned Single Judge of this Court, the

application under Section 17-B was decided along with the writ petition

itself. However, in the case before us, the writ petition is still pending.

In the case of Carrit Moran & Co. Pvt. Ltd. (supra), Calcutta High

Court found that there was no paper to show relationship of employer and

employee. The benefit of Section 17-B was, therefore, denied by the High

Court.

In Akbarkhan M. Pathan (supra), the employer corporation had been

declared a sick industrial company under the provisions of SIKA and,

therefore, the application under Section 17-B was rejected.

The cases relied upon by the learned counsel for the appellant are,

therefore, clearly distinguishable on facts.

10. For the reasons stated hereinabove, we find no merit in the appeal and

the same is hereby dismissed. No order as to costs.

CHIEF JUSTICE

V.K. JAIN, J JANUARY 11, 2013/bg