Nipul Chandra Das vs Punjab National Bank And Anr
2021 Latest Caselaw 1585 Gua

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GAHC010192182020




                               THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                     Case No. : I.A.(Civil)/44/2021

           NIPUL CHANDRA DAS
           S/O. LATE POONA DAS, VILL. BALIAGHAT, PATHIAN GAON, DIST.
           SIVASAGAR, ASSAM, PIN-785667



           VERSUS

           PUNJAB NATIONAL BANK AND ANR.
           A BODY CORPORATE, CONSTITUTED UNDER THE BANKING COMPANIES
           (ACQUISITION AND TRANSFER OF UNDERTAKING), ACT, 1970, HAVING
           ITS HEAD OFFICE AT PLOT NO. 4, SECTOR-10, DWARKA, NEW DELHI-
           110075 AND THE SUCCESSOR OF UNITED BANK OF INDIA, BY SCHEME OF
           AMALGAMATION OF ORIENTAL BANK OF COMMERCE/UNITED BANK OF
           INDIA, PASSED BY THE CENTRAL GOVT. UNDER SECTION 9 OF THE
           BANKING COMPANIES (ACQUISITION AND TRANFER OF UNDERTAKING)
           ACT, 1970, THROUGH ITS BRANCH/DEPTT./DIVISION HAVING ITS OFFICE
           AT GUWAHATI-781001

           2:UNION OF INDIA
            REP. BY THE LABOUR DEPTT.
            GOVT. OF INDI


                                                    BEFORE
                            HON'BLE MR. JUSTICE KALYAN RAI SURANA


      Advocates for the petitioner      : Mr. S. Chakraborty.
      Advocates for the respondents     : Mr. S. Dutta, Senior Advocate
                                        : Mr. S. Dutta, Ms. C. Bora.
      Date of hearing                   : 01.04.2021.
      Date of judgment                  : 14.06.2021.
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                                            :ORDER:

Heard Mr. S. Chakraborty, learned counsel for the applicant and Mr. S. Dutta, learned senior counsel, assisted by Ms. C. Bora, learned counsel for the opposite party.

2) By filing this application under Section 17B of the Industrial Disputes Act, 1947, the applicant has claimed full wages last drawn from the date of award dated 20.11.2019, passed by the learned Central Industrial Tribunal- cum- Labour Court, Assam (herein after referred to as "Tribunal").

3) Bereft of details, for the purpose of this order, it would suffice to mention that in brief the case projected by the applicant is that he was engaged as a part-time sweeper on 01.07.2009 and from 01.04.2016, he was engaged as a permanent house- keeping staff and posted in Gaurisagar Branch of United Bank of India. The applicant was suspended on 31.10.2016 and charge-sheet dated 05.01.2017 was served on him. The applicant denied the charges. The opposite party conducted domestic enquiry and by report dated 18.04.2017, the Enquiry Officer held the applicant to be guilty and accordingly, by order dated 19.06.2017, the applicant was punished with dismissal from service. The applicant raised an industrial dispute before the Regional Labour Commissioner (Central), but as the dispute could not be settled, the applicant approached the learned Tribunal. By judgment and award impugned in the connected writ petition, the learned Tribunal had interfered with the order of dismissal and ordered the applicant to be reinstated in service with full back wages. Upon challenge made to the award in the connected writ petition, this Court by order dated 21.10.2020, had stayed the impugned award till further orders. Thus, this present application.

4) The learned counsel for the applicant has cited the cases of (i) Workmen, represented by Hindustan V.O. Corpn. Ltd. vs. Hindustan Vegetable Oils Corporation Ltd. & Ors., (2000) 9 SCC 534; (ii) Kakumoni Bhuyan Vs. The Management of Apollo Hospitals, Guwahati, I.A.(C) 2076/2020, decided by this Court by order dated 01.02.2021; (iii) Municipal Page No.# 3/6

Corporation of Delhi Vs. Santosh Kumari & Anr. & two connected cases, LPA 165/2012, LPA 345/2012 and LPA 342/2012, decided by Delhi High Court by order dated 24.08.2012; (iv) Indra Perfumery Co. Vs. Presiding Officer & Ors., decided by Delhi High Court by order dated 09.12.2003 (copy downloaded from indiankanoon.org/doc/75903): 109 (2004) DLT 927, has submitted that as per the provisions of Section 17B of the Industrial Disputes Act, 1947, the workman is required to be paid his last drawn salary during the pendency of proceedings which was filed to assail the award passed in favour of the workman.

5) Although no affidavit-in- opposition has been filed by the opposite parties, the learned senior counsel for the opposite parties, by citing the cases of (i) State of U.P. & Anr. Vs. Synthetics & Chemicals Ltd. & Anr., (1991) 4 SCC 139 (ii) Hans Raj Mahajan & Sons Pvt. Ltd. Vs. Presiding Officer & Anr., 2001 SCC OnLine P&H 68; (iii) Singer India Ltd. & Ors. Vs. State of W.B. & Ors., 1998 SCC OnLine Cal 226; (iv) M/s. Fouress Engineering (I) Pvt. Ltd. Vs. Delhi Administration & Ors., 1991 SCC OnLine Del 86 , has submitted that there was sufficient merit in the connected writ petition filed to assail the impugned award and therefore, it would be unjustified to order payment of full wages to the applicant. It is also submitted that the provisions of Section 17B of the Industrial Disputes Act, 1947 does not take away the power of the Courts to stay the award during the pendency of the challenge. Moreover, it is submitted that even if this Court is satisfied to direct the opposite parties for payment of wages to the applicant, it should be ordered from the date when this application has been filed.

6) The provisions of Section 17B of the Industrial Disputes Act, 1947 is extracted herein below:-

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 Page No.# 4/6

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) It is seen that the opposite parties had appeared in the proceedings before the learned Tribunal and had contested the case by filing their written statement. The applicant examined himself as witness, but the opposite parties did not come forward to cross examine the witness and did not tender any evidence. Accordingly, the matter was decided in favour of the applicant. Thereafter the opposite parties applied for recalling of the award, which was refused by order dated 12.02.2020. This discussion is just to appreciate the background and it is clarified that neither of the sides had made any submissions on merit nor the Court has entered into the merit of the connected writ petition.

8) There is no doubt that the provisions of Section 17B of the Industrial Disputes Act, 1947 is to ensure payment of full wages last drawn by the workman during pendency of challenge of the award passed in favour of the workman. This view has also been taken by a coordinate Bench of this Court in the case of Kakumoni Bhuyan (supra). No special circumstances exist in this case to take a contrary view.

9) Therefore, the only question which this Court is called upon to answer is whether the applicant would be entitled to his wages from the date of filing of the present application or from the date of award. In this regard, it is seen that the coordinate Bench of this Court in the case of Kakumoni Bhuyan (supra), has discussed various authorities on the Page No.# 5/6

point and has concluded that the entitlement of the workman to his wages would be from the date of the award. In this regard, reliance was placed on the case of (i) Dena Bank Vs. Kirtikumar T. Patel, (1999) 2 SCC 106; and (ii) Dena Bank Vs. Ghanshyam, (2001) 5 SCC 169 . There is no material on record to take another view of the matter. It is clarified that as this issue was elaborately discussed in the said case of Kakumoni Bhuyan (supra), there would be no point to burden this order with a repetition of the said discussions all over again.

10) The case of Synthetics & Chemicals (supra) was cited by the learned senior counsel for the opposite party to project that the decisions relied upon by the learned counsel for the applicant ought not be accepted as a settled law on the point as there was no discussions on the law and therefore, as no reason or rationale could be found in the order, by applying the principles of per incurium the said legal authorities may be ignored. We are afraid that the said submissions cannot be accepted because, while deciding the case of Kakumoni Bhuyan (supra), this Court had discussed the legal position and by relying on the cases cited therein, arrived at a conclusion that the workman would be entitled to wages from the date of the award. Thus, legal principles were discussed and legal rationale is the foundation of the said order. The case of Hans Raj Mahajan (supra) was cited to impress upon the Court that it is not necessary that the Section 17B application must be decided during the pendency of the writ petition, as such, it was submitted that the entitlement of the applicant to wages be decided when the connected writ petition is decided on merit. This argument is also not acceptable because it appears that the decision of the Supreme Court of India in the case of Hindustan Vegetable Oils (supra), wherein it was held that the Section 17B application should be decided with great promptitude and before the disposal of the writ petition was perhaps not brought to the notice of the High Court of Punjab & Haryana. Moreover, it appears that in light of the ratio laid down in the case of (i) Dena Bank Vs. Kirtikumar T. Patel (supra); and (ii) Dena Bank Vs. Ghanshyam (supra) , as elaborately discussed by the coordinate Bench of this Court in the case of Kakumoni Bhuyan (supra), with all respect to the case of Singer India (supra), and Fouress Engineering (supra), the same would not have any persuasive force on the Court in respect of this present case in hand.

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11) In light of the discussions above, the Court is of the considered opinion that the applicant has been able to make out a strong case to hold that the applicant is entitled to full wages last drawn from the date of the award. Accordingly, in terms of the provisions of Section 17B of the Industrial Disputes Act, the Court is inclined to issue a direction upon the opposite parties to pay to the applicant his full wages last drawn to be calculated from 20.11.2019, i.e. the date of the award passed by the learned Tribunal in Ref. Case No. 3/2019. The due amount shall be paid by the opposite parties to the applicant within a period of 45 days from today and the current entitled wages shall be released every month in accordance with law.

12)             This interlocutory application stands disposed of.




                                                                     JUDGE



Comparing Assistant